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Thursday, June 18, 2015

ABIGAIL GINSBERG, ET AL. VS. QUEST DIAGNOSTICS, INC., ET AL. A-1387-14T3

ABIGAIL GINSBERG, ET AL. VS. QUEST DIAGNOSTICS, INC., ET AL. 
A-1387-14T3/A-1388-14T3/A-1389-14T3/A-1390-14T3 
(CONSOLIDATED) 
Plaintiffs, residents of New Jersey who previously lived in New York, have asserted claims of wrongful birth, wrongful life, medical malpractice and negligence in connection with their now-deceased daughter's birth in 2008 in New York and her subsequent diagnosis of Tay-Sachs disease, a genetically-inherited and fatal condition. Plaintiffs claim defendants each erred in the health care, genetic testing services, or genetic counseling  provided before the couple conceived their daughter upon a mistaken belief that the father was not a Tay-Sachs carrier. The trial court ruled that New Jersey law, which differs from New York law in several material respects, applies to all of the parties and claims in this case. 
As a matter of first impression, the panel held that a court may adopt a defendant-by-defendant approach to choice of law in a tort case such as this one involving conduct and parties that straddle multiple states. 

Applying principles of the Restatement (Second) of Conflicts of Laws (1971), the panel reversed the trial court in part. The panel held that New York law applies to the claims against the defendant laboratory and third-party defendant New York hospital that tested the father's blood sample in New York, but New Jersey law applies to the claims against the New Jersey health care defendants who provided the couple with services in New Jersey. 

ROSENTHAL & ROSENTHAL, INC. VS. VANESSA BENUN, ET AL. A-2890-13T3

 ROSENTHAL & ROSENTHAL, INC. VS. VANESSA BENUN, ET AL. 
A-2890-13T3 

In this foreclosure action, applying the common law rules of priority for future advance mortgages, Riker Danzig's later-recorded mortgage has priority over the earlier-recorded mortgages of Rosenthal & Rosenthal because Rosenthal & Rosenthal made optional, not obligatory, advances to the debtor with actual knowledge of Riker Danzig's mortgage. 

P.M. VS. N.P. A-1947-12T2

P.M. VS. N.P. 
A-1947-12T2 
In this appeal, plaintiff-wife argues the Family Part Judge, who decided a number of post-judgment motions, erred in denying her application to recuse himself. Plaintiff claims the judge's impartiality was tainted when his law clerk engaged in employment discussions with and ultimately accepted an offer of employment from the attorney who represents defendant-husband. Plaintiff claims defense counsel discussed employment opportunities with the judge's law clerk during the time in which the judge was managing this contentious post-divorce motion practice. Plaintiff also alleges the law clerk is related to the trial judge in some undisclosed degree of consanguinity, which the judge refused to clarify despite plaintiff's counsel's repeated requests. 

We remand for the judge to address the Court’s concerns in Comparato v. Schait, 180 N.J. 90 (2004). The judge must then determine the extent to which his familial relationship with his law clerk created an appearance of impropriety under In re Reddin, 221 N.J. 221 (2015), DeNike v. Cupo, 196 N.J. 502 (2008), and Rule 1:12-2. 

NORTH JERSEY MEDIA GROUP, INC. VS. TOWNSHIP OF LYNDHURST, ET AL. A-2523-14T1

NORTH JERSEY MEDIA GROUP, INC. VS. TOWNSHIP OF LYNDHURST, ET AL. 
A-2523-14T1 
In this interlocutory appeal, we reversed an order compelling the New Jersey State Police and several other law enforcement agencies (LEAs) to release various documents pertaining to an ongoing criminal investigation related to a fatal police shooting of criminal suspect. The trial court held release was mandated by OPRA and the common law right of access. 

We concluded the trial court interpreted too narrowly the definition of "criminal investigatory records," which are excluded from the definition of "government record" generally subject to disclosure under OPRA. N.J.S.A. 47:1A-1.1. Also, the trial court's balancing of the requesters' interest in disclosure, and the LEAs' interest in confidentiality, was flawed, because the court refused to consider an in camera submission supporting defendants' claim that release would undermine the ongoing investigation into the shooting. On the other hand, we affirmed in part the holding that defendants failed to comply with their obligation under N.J.S.A. 47:1A-3(b) to release specified information about the investigation 

MELODY FAITH MAZUR, ETC. VS. CRANE'S MILL NURSING HOME, ET AL. A-2072-14T2/A-2495-14T2

MELODY FAITH MAZUR, ETC. VS. CRANE'S MILL NURSING HOME, ET AL. 
A-2072-14T2/A-2495-14T2 
In this medical malpractice action, we reverse the trial court's order dismissing the complaint due to a deficient affidavit of merit. The trial court based its decision on the misstatement in an answer that a defendant was board certified when he treated the patient; a misstatement repeated by defense counsel in the certification and throughout the brief filed in support of the motion to dismiss. 
We conclude that the appropriate remedy on remand is to require defendant to amend the answer to correct the misstatement and to permit plaintiff to file an affidavit of merit within sixty days, extendable by sixty days for good cause. We also review the procedural requirements concerning affidavits of merit as well as those of Rule 1:6, particularly the requirement of Rule 1:6-6 that affidavits intended to establish facts not appearing of record be based on personal knowledge. 

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. J.C. AND C.M. IN THE MATTER OF T.M. A-2436-13T3

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. J.C. AND C.M. IN THE MATTER OF T.M. 
A-2436-13T3 
The Family Part judge entered a finding that a mother neglected her three-year old son after she drank alcohol and 
remained in her bedroom the following morning with the bedroom door closed, while the child was in the next room unsupervised, wearing a dirty diaper, with the apartment door ajar. 

Because there was no harm to the child and the mother's conduct did not rise to the level of gross negligence or reckless disregard for the child's safety, we reversed. 

NEW JERSEY STATE (DIVISION OF STATE POLICE) VS. NEW JERSEY STATE TROOPER CAPTAINS ASSOCIATION A-6095-11T3

NEW JERSEY STATE (DIVISION OF STATE POLICE) VS. NEW JERSEY STATE TROOPER CAPTAINS ASSOCIATION 
A-6095-11T3 
The State of New Jersey, Division of State Police (Division), challenges on appeal a final agency action of the New Jersey Public Employment Relations Commission (PERC) which held that, with some exceptions, captains are not "managerial executives" as that term is defined in the 2010 amendment to N.J.S.A. 34:13A-3(f), and thus may engage in collective bargaining. The Division argues that PERC employed a flawed "two-pronged" analysis in reaching its conclusion and that if it had restricted its analysis to deciding whether captains occupy a position akin to an "assistant commissioner" in other executive branch departments, its result would have been different. 

We disagree with the Division's characterization of the PERC holding and we affirm. 

BRIAN BEYER VS. SEA BRIGHT BOROUGH AND SEA BRIGHT POLICE DEPARTMENT A-4061-13T4

BRIAN BEYER VS. SEA BRIGHT BOROUGH AND SEA BRIGHT POLICE DEPARTMENT 
A-4061-13T4 

The Law Division denied plaintiff's motion for late filing of a Tort Claims Act notice, in part finding that the terminal illness of his attorney, which required emergency surgery, did not constitute extraordinary circumstances. We reversed and remanded, concluding that the serious illness and resulting incapacity of the attorney in this case cannot be equated with inattentiveness or negligent conduct. On remand, the Law Division is to hold an evidentiary hearing for the purpose of determining whether the facts support the plaintiff's assertion that the late filing resulted from his attorney's severe medical condition. 

IN THE MATTER OF THE DENIAL FOR A NEW JERSEY FIREARMS PURCHASER IDENTIFICATION CARD AND PERMIT TO PURCHASE A HANDGUN BY Z.K. A-5851-12T1

IN THE MATTER OF THE DENIAL FOR A NEW JERSEY FIREARMS PURCHASER IDENTIFICATION CARD AND PERMIT TO PURCHASE A HANDGUN BY Z.K. 
A-5851-12T1 
Appellant applied for a firearms purchaser identification card and a permit to purchase a handgun. The local police department (East Brunswick) denied both because of his refusal to complete an additional form required by the department of all gun permit applicants. Appellant requested a hearing in the Superior Court. Finding that the additional form did not "add[] anything to the [Superintendent of the Division of State Police's] form or the requirements of Chapter 58," the court upheld the denial of the permits based on appellant's failure to complete the local form. 

Because the court concludes that the plain meaning of subsections e and f of N.J.S.A. 2C:58-3 prohibits local police departments from creating their own forms to supplement the form promulgated by the Superintendent of the Division of State Police pursuant to N.J.S.A. 2C:58-3e, it reverses. 

PATRICIA GILLERAN VS. THE TOWNSHIP OF BLOOMFIELD AND LOUISE M. PALAGANO A-5640-13T4

PATRICIA GILLERAN VS. THE TOWNSHIP OF BLOOMFIELD AND 
LOUISE M. PALAGANO 
A-5640-13T4 

The Open Public Records Act (OPRA) does not include a blanket exemption for video recordings made from an outdoor security camera. To justify denying an OPRA request pursuant to the definitional exclusions contained in N.J.S.A. 47:1A-1.1 for "security information," "procedures," "measures," and "techniques," the government agency must make a specific showing of why disclosure would jeopardize the security of the facility or put the safety of persons or property at risk. 
Because we agree with the trial court that the township did not make a sufficiently specific showing for an exemption, we need not decide whether N.J.S.A. 47:1A-5(g) requires a government agency to review requested recordings and redact only actual confidential information, as argued by plaintiff and the ACLU. Such a requirement of review and redaction seems impractical and virtually impossible to implement when the request is for lengthy surveillance recordings, such as the fourteen hours of recordings requested here by plaintiff. 

VINCENT DANIELS VS. HOLLISTER CO. A-3629-13T3

VINCENT DANIELS VS. HOLLISTER CO. 
A-3629-13T3 
In this interlocutory appeal, the court expressed its doubt whether the "ascertainability" doctrine adopted by some federal courts should ever be utilized in determining class certification but specifically concluded in this matter of first impression that "ascertainability" must play no role in considering certification of a low-value consumer class action. 

In addition, the court held that although orders granting or denying class certification are not appealable as of right, appellate courts will ordinarily grant leave to appeal: (1) when denial effectively ends the case; (2) when granting certification raises the stakes of the litigation so substantially that the defendant likely will feel irresistible pressure to settle; and (3) when permitting leave to appeal will lead to a clarification of a fundamental issue of law. 

Richard Grabowsky v. Township of Montclair (A-53-13

 Richard Grabowsky v. Township of Montclair (A-53-13; 073142) 

Applying the statutory standards set forth in the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163 (MLUL), and the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 to -22.25 (LGEL), as well as established common law authority, when a church or other organization owns property within 200 feet of a site that is the subject of a zoning application, public officials who currently serve in substantive leadership positions in the organization, or who will imminently assume such positions, are disqualified from voting on the application. 

Estate of Myroslava Kotsovska v. Saul Liebman (A-89-13;

Estate of Myroslava Kotsovska v. Saul Liebman (A-89-13; 073861) 
When there is a genuine dispute regarding a worker’s employment status, and the plaintiff elects to file a complaint only in the Superior Court Law Division, the Superior Court has concurrent jurisdiction to resolve the dispute. 

Christopher Burgos v. State of New Jersey (A-55-14;

Christopher Burgos v. State of New Jersey (A-55-14; 075736) 
Chapter 78 does not create a legally enforceable contract that is entitled to constitutional protection. The Debt Limitation Clause of the State Constitution interdicts the creation, in this manner, of a legally binding enforceable contract compelling multi-year financial payments in the sizable amounts called for by the statute. 

Gaskill v. CITI Mortgage, Inc. (A-51-13;

Gaskill v. CITI Mortgage, Inc. (A-51-13; 071804) 
The judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in Judge Cuff’s opinion. 

Nuwave Investment Corp. v. Hyman Beck & Co. (A-81-13;

Nuwave Investment Corp. v. Hyman Beck & Co. (A-81-13; 073551) 
The judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in Judge Messano’s opinion. The matter requires a new trial on damages in which the jury is properly instructed on the various categories of damages and is informed of the limited role of presumed damages, as described in W.J.A. v. D.A., 210 N.J. 229 (2012).