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Sunday, January 25, 2015

NEWFIELD FIRE COMPANY NO. 1 VS. THE BOROUGH OF NEWFIELD A-0751-13T4


NEWFIELD FIRE COMPANY NO. 1 VS. THE BOROUGH OF
          NEWFIELD
A-0751-13T4
We consider the scope of N.J.S.A. 40A:14-68, which allows a municipality to exercise "supervision and control" over a volunteer fire company designated as its official firefighting organization. Rejecting challenges by the plaintiff fire company, we conclude the statute allows the defendant borough to use an ordinance to set forth the terms and conditions upon which it would engage the volunteer fire company to perform the governmental function of firefighting.
Further, the plain language of this statute reflects the Legislature's intent to assure governmental supervision and control over volunteer fire companies to the extent they are charged with performing public functions funded by public taxpayer resources and the ordinance under review, as excised by the trial judge, does not exceed the designated authority.
Finally, we note the fire company can reject the proposed terms and cease its role as the designated fire organization in the borough. If so, the borough is free to attempt to resolve the disagreements or contract with a neighboring fire company under the required terms. 

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. S.H. AND M.H., IN THE MATTER OF S.H. A-0080-13T3

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS.
          S.H. AND M.H., IN THE MATTER OF S.H.
A-0080-13T3
After her son directed an expletive at her, defendant mother threw shoes at him, hit him with her hands, struck him in the legs with a golf club, and bit him three times on the shoulder. After a fact-finding hearing, the trial court determined that the mother did not abuse or neglect the child because his use of profanity provoked her and her actions were justified.
The child was diagnosed with ADHD and was enrolled as a special education student in his high school's behavior disability program. The judge relied on our decision in New Jersey Division of Youth & Family Services v. K.A., 413 N.J. Super. 504, 511 (App. Div. 2010), certif. dismissed, 208 N.J. 355 (2011), noting that the child was "out of control" and presenting challenges to his parents.
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We distinguished K.A. based on the severity of the child's injuries, the mother's use of instrumentalities in inflicting those injuries, and the unreasonable and disproportionate nature of the response. We also noted our view that K.A. should not be read to suggest that the test for determining excessive corporal punishment should be any different when the child has a disability.
We reversed and remanded for the entry of an order finding that the mother abused or neglected the child. 

LEONARDO ARIAS, ET AL. VS. ELITE MORTGAGE GROUP, INC, ET AL. A-4599-12T1


LEONARDO ARIAS, ET AL. VS. ELITE MORTGAGE GROUP, INC,
          ET AL.
A-4599-12T1
This case concerns the legal status of a Trial Period Plan (TPP) Agreement issued to plaintiffs under the federal Home Affordable Mortgage Program (HAMP). The issue is novel in New Jersey. Relying on Wigod v. Wells Fargo Bank, N.A., 673 F. 3d 547 (7th Cir. 2012), and the line of cases following Wigod, we concluded that the TPP Agreement was a unilateral offer pursuant to which the bank promised to give plaintiffs a loan modification, provided they complied fully and timely with their obligations under the Agreement. Those obligations included timely submission of the lower payments required of them during the trial period. We found that summary judgment was properly granted, because plaintiffs failed to make timely or complete payments during the trial period. 

ANDREA N. FRAZIER VS. BOARD OF REVIEW, DEPARTMENT OF LABOR AND CENTER FOR FAMILY SERVICES, INC. A-6228-12T3

 ANDREA N. FRAZIER VS. BOARD OF REVIEW, DEPARTMENT OF
          LABOR AND CENTER FOR FAMILY SERVICES, INC.
          A-6228-12T3
Claimant, who was simultaneously working both full-time and part-time, was terminated from her full-time job through no fault of her own. The part-time job was not suitable as her sole employment due to the low hourly pay and unreliable schedule. Seven months later she quit her part-time job to take another part-time job that offered her higher pay, a regular schedule and a possible path to full-time employment. When she had to leave that second part-time job due to unsafe working conditions, the agency determined she was partially disqualified from benefits because she voluntarily quit her earlier part-time job even though it did not interfere with her quest for full- time employment. N.J.A.C. 12:17-9.2(a)(2), however, explains that partial disqualification may be avoided when the claimant
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leaves part-time employment for personal reasons "which arise from the loss of the full-time employment[.]" Thus the reasons given by the agency for partial disqualification were insufficient and reversal was required. 

JOHN E. MYERS, TRUSTEE, AND DIANE D. MYERS, TRUSTEE, VS. OCEAN CITY ZONING BOARD OF ADJUSTMENT AND CITY OF OCEAN CITY A-2568-13T2


JOHN E. MYERS, TRUSTEE, AND DIANE D. MYERS, TRUSTEE, VS. OCEAN CITY ZONING BOARD OF ADJUSTMENT AND CITY OF OCEAN CITY
A-2568-13T2

The City of Ocean City challenged the trial court's order compelling it to respond to a proposed zoning change recommended by the Ocean City Planning Board in its master plan reexamination report. Construing N.J.S.A. 40:55D-62(a), the trial court concluded that a governing body must adopt an ordinance consistent with a change proposed in a reexamination report, or the governing body must affirmatively reject the change after a hearing. We reverse, holding that the statute does not require a governing body to affirmatively act in response to a master plan recommendation, so long as the existing ordinance is substantially consistent with the master plan's land use and housing plan elements. 

FELIX PEGUERO VS. TAU KAPPA EPSILON LOCAL CHAPTER, TAU KAPPA EPSILON NATIONAL CHAPTER, GREG SPINNER AND THOMAS PRICE, ET AL. A-5419-12T4

FELIX PEGUERO VS. TAU KAPPA EPSILON LOCAL CHAPTER, TAU KAPPA EPSILON NATIONAL CHAPTER, GREG SPINNER AND THOMAS PRICE, ET AL.
A-5419-12T4

Plaintiff attended a large party hosted at a private residence rented by several fraternity members. After consuming several drinks, plaintiff interceded in an argument that erupted in the backyard among other persons who were at the party. While trying to assist a friend involved in that argument, plaintiff was shot and wounded by another person who was at the party. The shooter was never apprehended or identified. There was no evidence that the fraternity had any past incidents involving guns on the premises or involving violent criminal behavior. There was also no proof that the shooter was a minor or a visibly intoxicated person who had been served alcohol at the party.
Plaintiff brought a negligence action against the national fraternity, the local fraternity chapter, and several students who were leaders or members of the fraternity. Defendants moved for summary judgment, which the trial court granted.
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We affirm the summary judgment order because we agree with the motion judge that there was no evidence showing that it was reasonably foreseeable that plaintiff would have been shot by a third party while attending an event hosted by the fraternity members. Hence, defendants breached no legal duty to plaintiff and were entitled to a judgment dismissing his negligence claims. For various reasons, the circumstances presented here are distinguishable from those in Clohesy v. Food Circus Supermarkets, 149 N.J. 496 (1997) and Butler v. Acme Markets, Inc., 89 N.J. 270 (1982), in which the Supreme Court recognized that the defendant supermarket owners owed a duty to protect their patrons from foreseeable criminal acts occurring on their premises.

Thursday, January 15, 2015

SANDRA COSTA VS. PAULO A. COSTA A-2078-13T4

SANDRA COSTA VS. PAULO A. COSTA
          A-2078-13T4
A parent's relocation to another country, while normally a change of circumstances warranting modification of that parent's physical custody, does not necessarily constitute a change of circumstances warranting modification of joint legal custody. Modern communications can enable the distant parent to remain a joint decision-maker in the major decisions regarding the children's welfare.
A change in joint legal custody is not justified by difficulties in renewing the children's passports, where the foreign parent consents to a court order authorizing the domestic parent to obtain a passport for the children regardless of the custodial arrangements, and authorizing the minor to travel. See 22 C.F.R. § 51.28(a)(3)(ii)(E) (2014).
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Accordingly, the trial court did not err in denying the domestic parent's motion to obtain sole legal custody for such purposes. 

WILSON BERMUDEZ VS. KESSLER INSTITUTE FOR REHABILITATION A-1610-13T4


WILSON BERMUDEZ VS. KESSLER INSTITUTE FOR
          REHABILITATION
A-1610-13T4
In this interlocutory appeal, the panel determined that the motion judge had erred as a matter of law in determining that a licensed comprehensive rehabilitation hospital such as Kessler is subject to the provisions of the Nursing Home Act, N.J.S.A. 30:13-1 to -17, including an award of treble damages and attorneys' fees to a successful litigant against it. 

JESSE L. MICKENS, JR. VS. TIMOTHY S. MISDOM AND CITY OF ELIZABETH A-0326-13T3


JESSE L. MICKENS, JR. VS. TIMOTHY S. MISDOM AND CITY OF ELIZABETH
A-0326-13T3
Plaintiff sustained a herniated disc as a result of defendants' truck collision with plaintiff's parked vehicle. The jury heard evidence that the herniated disc was surgically removed but the forty-year-old plaintiff has and will continue to live with persistent back pain and discomfort. The jury awarded plaintiff $2,400,000 for his disability, impairment, loss of enjoyment of life, and pain and suffering. In deferring to the jury's assessment of the evidence and the trial judge's "feel of the case," the court affirmed the decision denying a new trial or remittitur because the trial judge found the verdict was not shocking to "the judicial conscience." The court also recognized the judge's decision was supported by his own conscience, which was derived, as permitted by He v. Miller, 207 N.J. 230 (2011), from the judge's own experiences as a trial judge and practicing attorney. 

IN THE MATTER OF COMMISSION PROCEEDING ON REVOCATION OF LICENSE OF PASQUALE PONTORIERO A-1006-12T4

IN THE MATTER OF COMMISSION PROCEEDING ON REVOCATION OF LICENSE OF PASQUALE PONTORIERO
A-1006-12T4
Appellant sought review of the order of the Waterfront Commission of New York Harbor (Commission), which revoked his license to work as a hiring agent on the New Jersey waterfront under the Waterfront Commission Act (Waterfront Act), N.J.S.A. 32:23-1 to -225. Appellant's license was revoked for an association with two career offenders, members of the Genovese crime family, "inimical to the policies" of the Waterfront Act, contrary to N.J.S.A. 32:23-93(6) to -(7), and for lack of good
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character and integrity, contrary to N.J.S.A. 32:23-14(a), - 18(a).
We conclude that the Commission's findings that appellant associated with career offenders, and lacked good character and integrity, were supported by the evidence. 

ROBIN B. WOJTKOWIAK VS. NEW JERSEY MOTOR VEHICLE COMMISSION AND NEW JERSEY DIVISION ON CIVIL RIGHTS A-5341-12T4

ROBIN B. WOJTKOWIAK VS. NEW JERSEY MOTOR VEHICLE
          COMMISSION AND NEW JERSEY DIVISION ON CIVIL RIGHTS
          A-5341-12T4
In this LAD case, complainant asserted that her agoraphobia required the MVC to exempt her from appearing to be photographed for her driver's license. Because a court must determine whether the accommodations demanded are required to afford the services sought, the court holds that a LAD claimant has the burden to prove the extent of the disability where it is relevant to the reasonableness of the accommodations offered or demanded. When the extent of the disability is not readily apparent, expert medical evidence is required.
Because complainant's medical evidence did not clearly specify the extent of her limitations, she failed to show the accommodations offered by the MVC were unreasonable. However, given her ongoing need for a driver's license, a new claim of
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future acts of discrimination, supported by new and materially different evidence of her limitations at that time, would not be barred as "the same grievance" under N.J.S.A. 10:5-27. 

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION VS. ALLOWAY TOWNSHIP, ET AL. A-3835-12T3


NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION
          VS. ALLOWAY TOWNSHIP, ET AL.
A-3835-12T3
In this appeal, we interpret provisions of the Safe Dam Act, N.J.S.A. 58:4-1 to -14, in particular DEP's authority to bring a civil enforcement action against an "owner or person having control of a reservoir or dam." N.J.S.A. 58:4-5(a). The Chancery Judge granted DEP summary judgment, concluding that the owner of the land upon which the dam was constructed, who also owned the reservoir created, as well as the county, which had constructed works appurtenant to the earthen dam, and the township, which maintained a road that traversed the crest of the dam, were all responsible under the statute and assessed civil penalties accordingly. We affirmed the judge's decision in all respects.
In so doing, we specifically overruled that portion of a published opinion of the Chancery Division, New Jersey Department of Environmental Protection v. Mercer County Soil Conservation District, 425 N.J. Super. 208 (Ch. Div. 2009), which held that ownership of the land upon which the dam was constructed was not, in and of itself, a sufficient basis for liability under the Act. 

GIANNAKOPOULOS VS. MID STATE MALL, ET AL. A-1955-13T2

PANAGIOTI L. GIANNAKOPOULOS VS. MID STATE MALL, ET AL.
          A-1955-13T2
Plaintiff suffered serious injuries, including brain damage and paraplegia, after an automobile turning left out of a mall parking lot collided with his motorcycle. Plaintiff filed a timely complaint against the mall and an untimely complaint against the engineering firm that designed the mall. Construing Rule 1:13-7(a), we find that the trial court erred in reconsidering a prior judge's order reinstating plaintiff's complaint against the mall, which had been administratively dismissed for lack of prosecution. We also find the trial court erred in granting summary judgment in favor of the engineering firm.
We conclude that the good cause standard of Rule 1:13-7(a) applies here, rather than the exceptional circumstances standard. We also find that, before departing from the first judge's order tolling the statute of limitations under N.J.S.A. 2A:14-21, the trial court should have held a N.J.R.E. 104 hearing on plaintiff's claim that he was either incapacitated contemporaneously with the accident or became incapacitated shortly thereafter due to the accident. 

HETTY ROSENSTEIN, LABOR CO-CHAIRPERSON OF THE STATE HEALTH BENEFITS PLAN DESIGN COMMITTEE AND CHARLES WOWKANECH, PRESIDENT, NEW JERSEY STATE AFL-CIO VS. STATE OF NEW JERSEY, DEPARTMENT OF TREASURY, DIVISION OF PENSIONS AND BENEFITS A-0945-12T1


HETTY ROSENSTEIN, LABOR CO-CHAIRPERSON OF THE
          STATE HEALTH BENEFITS PLAN DESIGN COMMITTEE AND
          CHARLES WOWKANECH, PRESIDENT, NEW JERSEY STATE
          AFL-CIO VS. STATE OF NEW JERSEY, DEPARTMENT OF
          TREASURY, DIVISION OF PENSIONS AND BENEFITS
          A-0945-12T1
Because 2011 amendments to the pension and benefits laws provided the State Health Benefits Plan Design Committee (SHBPDC) which consists of six labor and six administration appointees with the authority to create, modify or terminate the state health benefit plan or any of its components, the State Health Benefits Commission (SHBC) was not authorized to exercise its former authority in increasing retiree prescription copayment levels, and the Division of Pension and Benefits (the Division) erred in applying the SHBC's ultra vires determination regardless of the fact that the SHBPDC had reached an impasse yet to be resolved through super-conciliation. The court determined that, until resolution of the impasse, the prior copayment levels had to be maintained. The court also rejected the Division's arguments that appellants, who are members of the SHBPDC, lacked standing or that the exhaustion doctrine counseled against this court's intervention until completion of super-conciliation. 

HILL INTERNATIONAL, INC. VS. ATLANTIC CITY BOARD OF EDUCATION COBRA CONSTRUCTION COMPANY, INC. VS. ATLANTIC CITY BOARD OF EDUCATION A-4139-13T3

HILL INTERNATIONAL, INC. VS. ATLANTIC CITY BOARD
          OF EDUCATION
          COBRA CONSTRUCTION COMPANY, INC. VS. ATLANTIC CITY
          BOARD OF EDUCATION
          A-4139-13T3
When a professional in one of the categories listed in N.J.S.A. 2A:53A-26 has been sued for malpractice or negligence, a supporting affidavit of merit ("AOM") is required from a "like-licensed" professional. This "like-licensed" requirement applies even where the functions of one profession may overlap with those of another profession. However, such an AOM is not required for claims (1) solely involving matters of common knowledge; (2) based on a defendant's conduct outside the scope of his or her professional duties; (3) of intentional
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wrongdoing; or (4) based exclusively on theories of vicarious liability or agency.
Applying these principles here, we reverse the trial court's interlocutory order permitting a licensed engineer to issue an AOM against defendant architects regarding alleged negligence in design and construction contract administration. Even though there is some overlap between these two professions, the statute requires an AOM from a like-licensed architect. We remand to allow plaintiff to obtain such an affidavit. 

ESSEX COUNTY CORRECTIONS OFFICERS PBA LOCAL 382 VS. COUNTY OF ESSEX, ET AL. A-4309-12T2


ESSEX COUNTY CORRECTIONS OFFICERS PBA LOCAL 382
          VS. COUNTY OF ESSEX, ET AL.
A-4309-12T2
This is an appeal from a summary action pursuant to Rule 4:67 in which plaintiffs allege that Essex County has unlawfully "privatized" its jail operations. We hold that Essex County can lawfully contract for rehabilitative and similar treatment services for county jail inmates at two privately owned and operated inmate facilities, Delaney Hall and Logan Hall. Without express Legislative authority, however, the county cannot lawfully delegate to private entities its core governmental function of confining and "keeping" county inmates who are not in need of such services.
Plaintiffs did not prove the unlawfulness of the five-year, $129-million-plus contract for the operation of Delaney and Logan Halls. Although plaintiffs initiated the request that the litigation proceed as a summary action, the importance of the issue and the likelihood of similar future contracts warrants a remand to permit further proceedings as a plenary case. 

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. N.M. AND J.K.IN THE MATTER OF J.K, JR. AND J.K. A-0349-13T3


NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. N.M. AND J.K.IN THE MATTER OF J.K, JR. AND J.K. A-0349-13T3
We reverse the trial court's finding that a mother abused or neglected her two children by bringing them to a public park to meet her former boyfriend, who followed her home and raped her in the children's presence. The former boyfriend had earlier refused to provide his address for a background check, and a caseworker advised the mother not to allow him around the children.
A prior substantiation of abuse or neglect against the mother for leaving her youngest son with the child's father who seriously injured him, did not support the court's conclusion that the mother demonstrated a history of exercising poor judgment and exposing her children to violence.
The Division failed to establish that the children suffered harm as a result of defendant's actions, and her conduct was neither reckless nor grossly negligent. 

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. R.W. IN THE MATTER OF M.W. AND Z.W. A-4545-12T3


NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. R.W. IN THE MATTER OF M.W. AND Z.W.
A-4545-12T3
A mother's admission to a one-time use of marijuana, while accompanied by her infant, is not proof by the preponderance of the evidence that she abused and neglected her child within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b). Furthermore, the manner in which the New Jersey Division of Child Protection and Permanency attempted to prove the conduct——by moving into evidence a document containing a caseworker's summary of an interview with a staff member at the residential placement where the mother had been living——raised critical evidential issues. 

D.A. VS. R.C. A-4030-12T2

D.A. VS. R.C.
          A-4030-12T2
In this custody and parenting time case, we reverse the custody order entered by the Family Part and remand for the judge to refer this matter to mediation as required under Rule 5:8-1. The informality that permeated all of the court's interactions with the parties and their respective attorneys precluded the court from adjudicating this hotly disputed custody case, and ultimately undermined the solemnity and decorum necessary for effective courtroom management.
The Family Part judge did not interview the fourteen-year- old boy at the center of this custody dispute, despite allegations that: (1) the custodial parent used excessive corporal punishment and a confrontational parenting style as a means of disciplining the child; and (2) the non-custodial parent regularly exposed the child to domestic violence. Under
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Rule 5:8-6 and N.J.S.A. 9:2-4(c), the judge had a duty to interview this teenage boy, or place on the record the reasons for his decision not to interview him.
Finally, the judge entered a final custody order awarding residential custody of this fourteen-year-old boy to each parent on a 50/50 basis, without placing on the record the factual findings and conclusions of law explaining how this decision was in the best interest of this child or how he resolved the conflicting material factual assertions made by the parties in their respective certifications without conducting a plenary hearing, as required by N.J.S.A. 9:2-4(f) and Rule 1:7-4(a).