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Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures for the Bar and handles litigation matters. He is Past Chair of the ABA Tort & Insurance Committee,GP on Personal Injury and was a speaker at the ABA Annual Meeting attended by 10,000 attorneys and professionals. To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or

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Monday, September 28, 2015

Prioleau v. Kentucky Fried Chicken, Inc. (A-99-13)

Prioleau v. Kentucky Fried Chicken, Inc. (A-99-13) (074040) Argued March 17, 2015 Decided September 28, 2015
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court considers the application of the mode-of-operation rule to plaintiff’s personal injury claims. Under the mode-of-operation rule, a business invitee who is injured on the premises of the business is entitled to an inference of negligence and is relieved of the obligation to prove that the business owner had notice of the dangerous condition that caused the accident.
On December 26, 2009, plaintiff and her adult son and daughter were on a trip from their home in Delaware to New Jersey. Plaintiff and her children recall that the day was rainy; plaintiff stated that there was a “torrential storm.” They stopped for dinner at a Kentucky Fried Chicken restaurant in Cherry Hill.
When plaintiff entered the restaurant, she immediately went to the counter to tell her son what she wanted to eat, and then headed to the restroom. As she approached the restroom, plaintiff slipped and fell, landing on her buttocks and hands. According to plaintiff, the floor near the restroom was greasy and wet, and she testified that it was slippery “like I was on ice.”
Although she testified that she was in pain, plaintiff did not seek immediate medical attention. Plaintiff continued on their trip. After returning to Delaware, plaintiff sought medical treatment and was referred to a neurosurgeon who prescribed physical therapy. Plaintiff alleged that she suffers constant pain in her lower back, takes pain medication, and that the pain has affected her ability to perform some of the tasks assigned to her work.
Managers and employees of Kentucky Fried Chicken testified that employees are expected to regularly monitor customer areas and to mop up spills and excess water. One manager testified that oil was used to cook the food served and sometimes spilled on the kitchen floor. She acknowledged that kitchen employees could “possibly” track cooking oil to customer areas when they used the restrooms.
Plaintiff filed this action asserting a negligence claim and alleging that defendants failed to exercise reasonable care. The matter was tried before a jury over three days. At the jury charge conference, plaintiff’s counsel claimed plaintiff was entitled to a mode-of-operation jury charge because oil may have been tracked from the restaurant kitchen to the floor near the restroom. The trial court agreed, also citing testimony that the employees “should have a cone out on a rainy day.” Instead of choosing one of the alternative model charges on the mode-of- operation rule set forth in the Model Jury Charge (Civil), the trial court gave both alternatives in sequence. In addition, the trial court separately instructed the jury based on the charge, “Notice Not Required When Condition is Caused by Defendant,” which permits a plaintiff to recover without showing that the defendant had notice of the unsafe condition if the owner or employee created the unsafe condition through his or her own act or omission.
The jury found defendants negligent and defendants appealed. A divided Appellate Division panel reversed the trial court’s determination on the mode-of-operation rule, vacated the judgment and remanded for a new trial. A dissenting member of the panel viewed the majority’s construction of the mode-of-operation rule too limited and deemed the rule applicable. Plaintiff appealed as of right based on the dissenting opinion.
HELD: The mode-of-operation rule applies only in situations where the customer foreseeably serves himself or herself, or otherwise directly engages with products or services unsupervised by an employee. Plaintiff’s theories of liability did not involve a self-service operation that might warrant a mode-of-operation jury instruction. Because the trial court’s erroneous mode-of-operation charge may well have determined the jury’s verdict, defendant is entitled to a new trial on the issue of liability.
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1. The sole issue raised by this appeal is whether the trial court’s decision to charge the jury on the mode-of- operation rule constituted reversible error. Not every improper jury charge warrants reversal. A new trial is warranted only where the jury could have come to a different result had it been correctly instructed.  
2. Ordinarily, an invitee seeking to hold a business proprietor liable in negligence must prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. The burden imposed on a plaintiff invitee is substantially altered in settings in which the mode-of- operation rule applies. The rule gives rise to a rebuttable inference that the defendant is negligent, and obviates the need for the plaintiff to prove actual or constructive notice.  
3. In all of its prior mode-of-operation cases, this Court has emphasized the self-service nature of the defendant’s business. The Appellate Division has taken a similar approach, applying the rule to cases arising from injuries in which defendants conduct self-service operations. One principle derived from these cases is that the mode-of- operation rule is not a general rule of premises liability, but a special application of foreseeability principles in recognition of the extraordinary risks that arise when a defendant chooses a customer self-service business model.  
4. The trial court here did not properly apply the mode-of-operation rule and the Appellate Division majority correctly stated the scope of the rule. There is no evidence in the trial record that the location in which plaintiff’s accident occurred bears the slightest relationship to any self-service component of defendants’ business. Moreover, plaintiff’s theories of liability do not involve a self-service operation that might warrant a mode-of-operation jury instruction.  
5. Plaintiff contends that even if the trial court erred in giving the mode-of-operation charge, it was harmless error that does not warrant a new trial. That argument is premised on the notion that the jury may have based its finding of negligence not on the mode-of-operation rule, but on the different standard that governs cases in which the defendant or its employees caused the dangerous condition. Based on the record at trial, the court cannot conclude that the error was harmless. The jury could have found liability based only on the mode-of-operation rule. Defendants are therefore entitled to a new trial on the issue of liability.  
The judgment of the Appellate Division is AFFIRMED as MODIFIED, and the matter is REMANDED for further proceedings consistent with the Court’s opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, and SOLOMON; and JUDGE CUFF (temporarily assigned), join in JUSTICE PATTERSON’s opinion.

A.A. VS. CHRISTOPHER J. GRAMICCIONI, ESQ., CAREY J. HUFF, ESQ., AND OFFICE OF THE COUNTY PROSECUTOR OF MONMOUTH COUNTY, NEW JERSEY A-0946-13T3


A.A. VS. CHRISTOPHER J. GRAMICCIONI, ESQ., CAREY J. HUFF, ESQ., AND OFFICE OF THE COUNTY PROSECUTOR OF MONMOUTH COUNTY, NEW JERSEY
A-0946-13T3

This appeal involves an anonymous requestor of records pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and alternatively under the common law right of access, who seeks to remain anonymous when litigating in the Superior Court. We conclude there is no statutory authorization, rule authorization or compelling reason permitting A.A. to prosecute this matter anonymously. We also conclude that the trial judge properly dismissed the complaint for failure to comply with Rule 4:67. 

Monday, September 21, 2015

A.A. VS. CHRISTOPHER J. GRAMICCIONI

A.A. VS. CHRISTOPHER J. GRAMICCIONI, ESQ., CAREY J. HUFF, ESQ., AND OFFICE OF THE COUNTY PROSECUTOR OF MONMOUTH COUNTY, NEW JERSEY 
A-0946-13T3 

This appeal involves an anonymous requestor of records pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and alternatively under the common law right of access, who seeks to remain anonymous when litigating in the Superior Court. We conclude there is no statutory authorization, rule authorization or compelling reason permitting A.A. to prosecute this matter anonymously. We also conclude that the trial judge properly dismissed the complaint for failure to comply with Rule 4:67. 

SCHIAVO, ET AL. VS. MARINA DISTRICT DEVELOPMENT COMPANY

SCHIAVO, ET AL. VS. MARINA DISTRICT DEVELOPMENT COMPANY, LLC, D/B/A BORGATA CASINO HOTEL & SPA 
A-5983-12T4 
Plaintiffs, twenty-one women who are present or former employees of defendant Marina District Development Company, LLC, operating as the Borgata Casino Hotel & Spa, appeal from the summary judgment dismissal of their complaint alleging violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, as informed by Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.A. §§ 2000e to 2000e-17. Plaintiffs allege defendant's adoption and application of personal appearance standards (the PAS) subjected them to illegal gender stereotyping, sexual harassment, disparate treatment, disparate impact, and as to some plaintiffs, resulted in adverse employment actions. 


 We examine the types of decimation claims and generally hold the PAS requirements were permitted by N.J.S.A. 10:5-12(p), a provision allowing an employer to establish reasonable employee appearance standards and the LAD does not encompass allegations of discrimination based on weight, appearance, or sex appeal. 

 The evidence does not support plaintiffs' claims of gender stereotyping, disparate treatment, and disparate impact. However, the record does present a material dispute of facts regarding defendant's application of the PAS weight standard to harass certain plaintiffs whose lack of compliance resulted from 
documented medical conditions and post-pregnancy, thus targeting them because of their gender. As to those claims, summary judgment is reversed and the matter remanded. 

Sunday, September 13, 2015

DENISE BROWN VS. STATE OF NEW JERSEY AND JOHN STEET DETECTIVE (NJSP), ET AL. A-4796-12T3


 DENISE BROWN VS. STATE OF NEW JERSEY AND JOHN STEET
          DETECTIVE (NJSP), ET AL.
A-4796-12T3
This is a civil suit under the New Jersey Civil Rights Act, N.J.S.A. 10:6-2c, to redress injuries arising out of a warrantless entry State Police detectives made into plaintiff Denise Brown's home in order to "secure the apartment" while they sought a search warrant for the premises. A jury returned a verdict for defendants and the judge denied plaintiff's motion for judgment notwithstanding the verdict (JNOV).
Brown appeals from the denial of her JNOV motion contending that she is entitled to judgment and an injunction "because it is indisputable the [State Police] seized and entered her residence absent a warrant, consent, or exigent circumstances according to policy and training." The court affirms the denial of the motion as to the State, as well as the denial of an injunction because the State is immune from suit under the Civil Rights Act. The court reverses the denial of the motion as to the individually named detective and remands for a trial on damages because the troopers' testimony establishes, indisputably, that their entry into Brown's residence before securing the warrant was unlawful as a matter of law. 

LISA VAN HORN VS. HARMONY SAND & GRAVEL, INC. A-2794-13T2


 LISA VAN HORN VS. HARMONY SAND & GRAVEL, INC.
          A-2794-13T2
In this appeal we considered whether the agreement to allow Harmony to build a quarry operation and remove gravel from property in return for royalties was a lease, as the trial court found, or a license, as the property owner argued. We determined that as the agreement between the parties, although called a lease, conveyed less than exclusive possession of the property but conveyed an interest that was alienable, assignable and inheritable for an indeterminate time, it was a profit a prendre. 

WILLIAM W. LISOWSKI, ET AL. VS. BOROUGH OF AVALON AND STATE OF NEW JERSEY TIDELANDS RESOURCE COUNCIL/ STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION VS.TOWNSHIP OF DELANCO A-0065-13T1

WILLIAM W. LISOWSKI, ET AL. VS. BOROUGH OF AVALON AND STATE OF NEW JERSEY TIDELANDS RESOURCE COUNCIL/
STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION VS.TOWNSHIP OF DELANCO

          A-0065-13T1/ A-3947-13T2
The 1981 amendment to the New Jersey Constitution, N.J. Const. art. VIII, § 5, ¶ I, required the State to specifically define and assert its claim to tidelands within forty years after the land was no longer tidal flowed. No legislative action was taken to establish a procedure the State should follow to satisfy the delineation and assertion requirements. In 1983, the Supreme Court decided Dickinson v. Fund for the Support of Free Public Schools, 95 N.J. 65, 84 (1983), addressing challenges to the validity of the Amendment and the methodology employed by the State to define and assert its tidal claims. Although the Supreme Court broadly described the constitutional imperatives, it did not define with particularity a procedure that was constitutionally required. However, the Court held compliance with the arduous procedures dictated by Title 13 to map the meadowlands was not required and that the State had satisfied constitutional requirements as to claimed areas shown on a particular exhibit, P-13, that were accompanied by base photomaps with claim overlays. Further, the Court repeatedly acknowledged that the exercise of administrative authority in this context is entitled to deference.
Some thirty years after Dickinson, these appeals challenge the sufficiency of the State's effort to delineate and assert its claims to certain tideland property within the time restriction established by the Amendment. Both Lisowski and Delanco challenge the sufficiency of the State's proofs that it provided timely notice of its claim and, in Delanco, the Township also challenges the methodology used in delineating the claim.
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Finding Dickinson dispositive, we reverse the order granting summary judgment to the Lisowskis, clearing their title. We affirm the order in Delanco, based upon the holdings in Dickinson and City of Jersey City v. Tidelands Resource Council, 95 N.J. 100 (1983), and the principles underlying our deference to administrative decisions as exemplified by City of Newark v. Natural Resource Council in Department of Environmental Protection 82 N.J. 530, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). 

Wednesday, September 9, 2015

JOAN MERNICK AND JOHN MERNICK VS. WANDA MCCUTCHEN AND HUDSON NEWS DISTRIBUTORS, LLC A-3683-14T2

JOAN MERNICK AND JOHN MERNICK VS. WANDA MCCUTCHEN AND HUDSON NEWS DISTRIBUTORS, LLC 
A-3683-14T2 

In this interlocutory appeal we considered a trial court order requiring the defendant to provide video surveillance of a plaintiff to her before the plaintiff's deposition. Based on the reasoning in Jenkins v. Rainer, 69 N.J. 50 (1976), we determined that as a general rule the defendant is not required to provide the surveillance video until after the plaintiff's deposition. 

IN THE MATTER OF PROBATION ASSOCIATION OF NEW JERSEY AND PETER TORTORETO AND ROBYN GHEE A-2101-13T3

IN THE MATTER OF PROBATION ASSOCIATION OF NEW JERSEY AND PETER TORTORETO AND ROBYN GHEE 
A-2101-13T3 
The sole issue on this appeal is whether the Public Employment Relations Commission (PERC) was correct as a matter of law in determining that because the Charging Parties were not expelled but only suspended from their union, the allegations of their unfair practice charge, even if true, concern only internal union disputes that do not support even a potential violation of the Employer-Employee Relations Act, and thus are beyond the scope of PERC's unfair practice jurisdiction. 
Because nothing in the language of N.J.S.A. 34:13A-5.3, 
-5.4b(1), which provides that "public employees shall have, and shall be protected in the exercise of, the right, freely and without fear of penalty or reprisal, to form, join and assist any employee organization," suggests that PERC's jurisdiction is invoked only when a member is expelled or permanently excluded from union membership, the court reverses. 

DAVID W. OPDERBECK VS. MIDLAND PARK BOARD OF EDUCATION A-2520-13T3

DAVID W. OPDERBECK VS. MIDLAND PARK BOARD OF EDUCATION 
A-2520-13T3 
In this appeal we are asked to construe the term "agenda" as used in the "adequate notice" requirements imposed on public bodies by the Open Public Meeting Act (OPMA), a/k/a the Sunshine Law. The OPMA does not define the term "agenda." The Law Division construed the term "agenda" to include the attachments and supplemental documents mentioned therein and, as a result, permanently enjoined the Midland Park Board of Education to post on its website copies of any appendices, attachments, reports, and other documents referred to in its agenda. 

We reverse and construe the term "agenda" by giving it its plain, ordinary meaning: a list or outline of things to be considered or done. This definition of "agenda" is also consistent with the definition of the term contained in a formal advisory opinion issued by the Attorney General shortly after the Legislature adopted the OPMA, and has guided public bodies on the meaning of "agenda," as used in N.J.S.A. 10:4-8(d), for nearly forty years. 

HIGHPOINT AT LAKEWOOD CONDOMINIUM ASSOCIATION, INC. VS. THE TOWNSHIP OF LAKEWOOD A-2118-13T2

 HIGHPOINT AT LAKEWOOD CONDOMINIUM ASSOCIATION, INC. VS. THE TOWNSHIP OF LAKEWOOD 
A-2118-13T2 
In this quiet title case, we address novel issues under the New Jersey Condominium Act, N.J.S.A. 46:8B-1 to -38, regarding the status of unbuilt units described in a master deed, and associated land. We hold that these so-called "phantom units" are subject to real estate tax, and to foreclosure if taxes are unpaid; and the association, as distinct from unit-owners, is not entitled to personal notice. We also hold that phantom unit-owners may be liable for common area assessments. We question the enforceability of powers of attorney, granted under a master deed by unit owners to a developer, purporting to authorize the developer to remove undeveloped units and the related land from the condominium. We also question whether such powers run with the land so as to grant removal authority to a subsequent title owner. We hold such powers of attorney are not self-executing. 

We remand for application of the principles set forth in our opinion, and reverse the trial court's order declaring that Lakewood Township, which foreclosed on tax sale certificates associated with the phantom units, owns the associated land removed from the condominium. 

GIVAUDAN FRAGRANCES CORPORATION VS. AETNA CASUALTY & SURETY COMPANY A/K/A TRAVELERS CASUALTY AND SURETY COMPANY, ET AL. A-2270-12T4

GIVAUDAN FRAGRANCES CORPORATION VS. AETNA CASUALTY & SURETY COMPANY A/K/A TRAVELERS CASUALTY AND SURETY COMPANY, ET AL. 
A-2270-12T4 
The Givaudan Corporation contaminated the groundwater and soil with hazardous materials in the vicinity of its plant in Clifton over many decades. Between 1964 and 1986, defendant insurance companies issued occurrence-based policies to this company, which later merged into another company in the 1990s. The successor by merger to the Givaudan Corporation acquired the rights under those policies. Various environmental actions were brought against plaintiff, an affiliate of the successor by merger, for the environmental damage the Givaudan Corporation caused between 1964 and 1986. The successor by merger assigned its rights under the insurance policies to plaintiff, which sought coverage under the policies. 
Defendants denied coverage, raising a number of defenses. Primarily they argued the policies could not be assigned because 
of a no-assignment provision in the respective policies. The trial court found in favor of defendants and dismissed plaintiff’s declaratory judgment action. 

We reversed, noting that under settled principles, an insured may assign its rights under a policy after a loss because an insurer's risk remains the same regardless of the insured's identity. Further, once an insurer's liability has become fixed due to a loss, an assignment of rights to collect under an insurance policy is not a transfer of the actual policy but a transfer of the right to a claim of money. 

JOHNNY MEDINA VS. CEASAR G. PITTA, M.D., ET AL. A-5023-12T1

JOHNNY MEDINA VS. CEASAR G. PITTA, M.D., ET AL. 
A-5023-12T1 
In this medical malpractice action, plaintiff retained an expert who was "fully retired" before any of the defendant physicians treated him. Plaintiff appeals from an order granting summary judgment to defendants on the ground that, pursuant to the New Jersey Medical Care Access and Responsibility and Patients First Act (PFA), N.J.S.A. 2A:53A-37 to -42, his proposed expert was not qualified to give expert testimony on the appropriate standard of care. He also appeals from the denial of his motion for reconsideration. For the reasons that follow, we conclude the proposed expert did not meet the qualification requirements of the PFA. We further consider plaintiff's argument that the doctrines of substantial compliance and extraordinary circumstances should preclude the dismissal of his complaint. We conclude that these doctrines are inapplicable when summary judgment is sought based upon a plaintiff's failure to secure an expert witness who is "statutorily authorized to testify" about the standard of care in a medical malpractice case. Therefore, a dismissal with prejudice was appropriate. 

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. I.B. AND A.E. IN THE MATTER OF R.B. A-2114-12T2

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. I.B. AND A.E. IN THE MATTER OF R.B. 
A-2114-12T2 
The central issue in this Title Nine trial was whether a licensed psychologist retained by the Division of Child Protection and Permanency to evaluate a five-year old could offer his opinion on the nature of her reported symptoms and his diagnosis to corroborate the child's hearsay report that her father made her touch his genitals. The trial judge heard the testimony pursuant to N.J.R.E. 104 but determined to exclude it based on a line of criminal cases starting with State v. J.Q., 130 N.J. 554 (1993), in which the Supreme Court rejected the use of Child Sexual Abuse Accommodation Syndrome evidence as substantive proof of child abuse. 
The State's expert in this case, however, did not offer an opinion on Child Sexual Abuse Accommodation Syndrome. He testified that the child, whom he evaluated within a month of the alleged abuse, suffered from Adjustment Disorder with mixed disturbance of emotions and conduct and concluded her "statements and presentation are consistent with a child who has experienced sexual abuse." We reverse and remand for the judge to consider the testimony offered by the Division's expert. We hold the psychological opinion evidence offered here is admissible to corroborate the child's allegation of abuse subject, of course, to whatever weight the judge deems appropriate to accord the testimony. 

08/

ESTATE OF JACK D'AVILA BY TIAGO D'AVILA, ADMINISTRATOR AD PROSEQUENDUM AND DENISE ROCHA, INDIVIDUALLY VS. HUGO NEU SCHNITZER EAST, ET AL. A-4439-11T2/4705-11T2/

ESTATE OF JACK D'AVILA BY TIAGO D'AVILA, ADMINISTRATOR AD PROSEQUENDUM AND DENISE ROCHA, INDIVIDUALLY VS. HUGO NEU SCHNITZER EAST, ET AL. 
A-4439-11T2/4705-11T2/4713-11T2 (CONSOLIDATED) 
These consolidated appeals arise out of a four-month jury trial in a wrongful death case against multiple defendants, 
including a general contractor, brought by the estate of a subcontractor's worker. The worker became paralyzed after being struck in the head by an unsecured metal ladder on a construction site. The worker was then given inadequate medical care at a nearby hospital, and he died three years later. 
In the published portion of this opinion, we hold that the trial court properly allowed the injured worker's employer to participate in the negligence trial. Such participation was appropriate to resolve the employer's fact-dependent contractual duty to indemnify the general contractor and did not violate the exclusive remedy provision of the Workers' Compensation Act, N.J.S.A. 34:15-8. 
We distinguish Kane v. Hartz Mountain Industries, Inc., 278 N.J. Super. 129, 134 (App. Div. 1994), aff'd o.b., 143 N.J. 141 (1996) (disapproving the employer's participation at trial). Instead, we approve using, in this unusually complex and expansive case, the unitary trial approach endorsed in White v. Newark Morning Star Ledger, 245 N.J. Super. 606 (Law Div. 1990). 
The trial court did err in not permitting the jury to ascertain the employer's percentage of fault, if any, on the verdict form. However, given appellant's failure to object below and the broad scope and protracted length of the trial, that omission does not require a retrial of this entire case. Instead, we order only a limited remand to sort out any lingering indemnification issues. 


TIMBER GLEN PHASE III, LLC AND JSM AT TIMBER GLEN, LLC VS. TOWNSHIP OF HAMILTON A-1775-13T1

TIMBER GLEN PHASE III, LLC AND JSM AT TIMBER GLEN, LLC VS. TOWNSHIP OF HAMILTON 
A-1775-13T1 
The parties disagree on the scope of municipal authority granted by N.J.S.A. 40:52-1 (the Licensing Act). Plaintiffs Timber Glen Phase III, LLC and JSM at Timber Glen, LLC appeal from the summary judgment dismissal of their complaint in lieu of prerogative writs that challenged an ordinance adopted by defendant Township of Hamilton, assessing an annual $100 licensing fee on residential apartment units. 

Obligated as we are to seek an interpretation that will make the most consistent whole of the statute, we conclude the 1998 amendment adding subsection (n), permitting licensure of the "rental of real property for a term less than 175 consecutive days for residential purposes by a person having a permanent place of residence elsewhere," and the accompanying 
bill statement serve as powerful evidence of an intention to limit licensing residential rentals and constrains the provisions of subsection (d), which includes "[h]otels, boardinghouses, lodging and rooming houses, . . . motels, furnished and unfurnished rented housing or living units" to refer to short term living arrangements. 

FAIR SHARE HOUSING CENTER, INC., VS. THE ZONING BOARD OF THE CITY OF HOBOKEN, ET AL A-1535-12T2/ A-1537-12

FAIR SHARE HOUSING CENTER, INC., VS. THE ZONING BOARD OF THE CITY OF HOBOKEN, ET AL 
A-1535-12T2/ A-1537-12T2/ A-1538-12T2/ A-1731-12T2/ A-1732-12T2 (CONSOLIDATED) 
These are five consolidated appeals filed to determine the enforceability of an affordable housing ordinance adopted by the City of Hoboken. The trial court held the ordinance was unenforceable, invalidated the zoning approval conditions imposed by the Zoning Board of Adjustment, relieved the developers from their obligation to provide affordable housing, and enjoined the City from imposing any requirement to construct affordable housing units and/or collect any monetary contribution related to affordable housing. 
We now reverse the trial court's order invalidating the City's affordable housing ordinance. We hold the trial court erred in invalidating the zoning approval conditions related to compliance with the ordinance's provisions as to all of the developers named as defendants by plaintiff Fair Share Housing Center and remand for the trial court to adjudicate the remaining legal issues raised by the parties. 

PAUL JAWORSKI, ALEXANDER HAGGIS AND ROBERT HOLEWINSKI VS. ERNST & YOUNG US LLP, TRACEY GUNTER AND RICHARD BAKER A-5259-13T2

PAUL JAWORSKI, ALEXANDER HAGGIS AND ROBERT HOLEWINSKI VS. ERNST & YOUNG US LLP, TRACEY GUNTER AND RICHARD BAKER 
A-5259-13T2 
Plaintiffs challenge the enforceability of Ernst & Young's mandatory arbitration policy on constitutional, statutory and common law grounds. The employees were provided notice of changes to the arbitration policy by electronic distribution. We determine, since the policy states assent is given by continued employment, remaining employed with the company evinces an unmistakable indication that the employee affirmatively has agreed to arbitrate his claims pursuant to the changed policy. 
We reject plaintiffs' arguments and affirm the trial court's decision that plaintiffs' age-discrimination claims are subject to mandatory arbitration. 
  

ANTHONY A. GONZALES VS. ELLEN I. HUGELMEYER, ET AL. A-2602-13T4

ANTHONY A. GONZALES VS. ELLEN I. HUGELMEYER, ET AL. 
A-2602-13T4 
Because of multiple trial errors, we reverse the judgment in this automobile negligence case and remand for a new jury trial. 
Extending State v. McLean, 205 N.J. 438, 460 (2011) (construing the lay opinion rule in N.J.R.E. 701) to a civil context, we hold that the trial court should have disallowed a State Trooper, who was not qualified as an expert witness, to provide and express to jurors his opinion concerning which driver was at fault in causing the accident. The court also erroneously permitted the Trooper to testify about and rely upon hearsay statements made to him by an unidentified eyewitness that he interviewed at the accident scene. The prejudice stemming from these errors was compounded by counsel's summation spotlighting this inadmissible evidence. 
We further hold that the trial court erred in preventing defense counsel from moving into evidence the relevant office notes of plaintiff's treating physician, on the basis that the jury had already heard about plaintiff's treatment in the physician's testimony. The admission of the doctor's testimony does not preclude the admission of relevant portions of the notes. 

Lastly, although not shown to be an independent basis for reversal here, we clarify this court's recent opinion in James v. Ruiz, 440 N.J. Super. 45, 73 n.17 (App. Div. 2015), regarding testimony from a chiropractor that discussed the hearsay MRI findings made by a non-testifying radiologist. 

IN THE MATTER OF THE REALLOCATION OF THE PROBATION OFFICER AND PROBATION OFFICER, BILINGUAL IN SPANISH AND ENGLISH TITLES FROM THE COMPETITIVE TO THE NON-COMPETITIVE DIVISION OF THE CAREER SERVICE A-0056-13T2

IN THE MATTER OF THE REALLOCATION OF THE PROBATION OFFICER AND PROBATION OFFICER, BILINGUAL IN SPANISH AND ENGLISH TITLES FROM THE COMPETITIVE TO THE NON-COMPETITIVE DIVISION OF THE CAREER SERVICE 
A-0056-13T2 
The Civil Service Commission approved the request by the Administrative Office of the Courts (AOC) for the transfer of two titles, from its competitive division to its noncompetitive division. The Probation Association of New Jersey appealed the 
Commission's decision, arguing that the transfer was unconstitutional under the provisions of article VII, section 1, paragraph 2 of the New Jersey Constitution, which requires public employees to be selected on the basis of "merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive." It further argued that the AOC had not established a sufficient factual basis for the transfer under the applicable statutory and regulatory requirements. 
The panel reversed and remanded for further consideration by the Commission. It concluded that the Commission had failed to consider the constitutional issue at all and that the AOC had failed to establish a sufficient factual justification for the transfer under the applicable statutes and regulation. The panel also instructed the Commission to consider the appropriateness of the proposed transfer for each title separately. 

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. K.N.S. IN THE MATTER OF E.J.S. A-4394-13T3

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. K.N.S. IN THE MATTER OF E.J.S. 
A-4394-13T3 
In this abuse or neglect case, the mother was grossly negligent in that she failed to provide adequate care and protection for her seven-month-old son when she left him in the care of a boyfriend while she worked and the child was seriously injured by the boyfriend. 

Despite the appropriate finding of neglect in this case, one might question the discrepancy between the permanent disqualifications resulting from Title Nine's Central Registry for abuse and neglect cases and the opportunity that exists under our Criminal Code for expungement of criminal convictions and relief from Megan's Law registration requirements. The Title Nine registry is a permanent record of the parent's misconduct and imposes a lifetime of disqualifications. It provides no opportunity for the remorseful and rehabilitated parent to expunge the record or ever to remove her name from the registry, even if the parent proves to be of good character for many years and even if the past incident of abuse or neglect does not cause lasting harm to the child. 

CYPRESS POINT CONDOMINIUM ASSOCIATION, INC. VS. ADRIA TOWERS L.L.C., ET AL. A-2767-13T1

CYPRESS POINT CONDOMINIUM ASSOCIATION, INC. VS. ADRIA TOWERS L.L.C., ET AL. 
A-2767-13T1 
Subcontractors performed defective work causing consequential damages to the common areas of a condominium complex and the unit owners' property. The condominium association sued the developer and the developer's insurers. Construing the developer's commercial general liability ("CGL") policy, we held that the consequential damages constituted "property damage" and an "occurrence" under the policy. We reached that conclusion by viewing the policy as a whole and 
distinguishing Weedo v. Stone-E-Brick, Inc., 81 N.J. 233 (1979), and Firemen's Insurance Co. of Newark v. National Union Fire Insurance Co., 387 N.J. Super. 434 (App. Div. 2006), two opinions construing a CGL policy with different insuring language. We reversed orders dismissing the complaint, with instructions to consider the insurers' alternate contentions that plaintiff's claims are otherwise excluded under the policy. 

CLAUDIA CASSER VS. TOWNSHIP OF KNOWLTON, ET AL. A-1815-13/2127-14T4 (CONSOLIDATED)

CLAUDIA CASSER VS. TOWNSHIP OF KNOWLTON, ET AL. 
A-1815-13/2127-14T4 (CONSOLIDATED) 

Plaintiff landowner failed to file a timely prerogative writs action challenging variances granted to her by the local planning board. Three years later, she filed a complaint against the board and other defendants, asserting various causes of action - including inverse condemnation, the New Jersey Civil Rights Act, and RICO - seeking relief from certain restrictive conditions on the variances, or money damages. She later sought to amend her complaint to include an in-lieu-of-prerogative writs challenge to the variances. The trial court held that the proposed amendment was untimely under Rule 4:69-6(a), and there was no basis to relax the forty-five day time limit under Rule 4:69-6(c). 
The trial court dismissed plaintiff's complaint for failure to exhaust administrative remedies. We affirmed. Plaintiff could not circumvent the exhaustion doctrine by waiting until it was too late to file an action in lieu of prerogative writs, and then claiming that exhaustion would be futile because the action was time-barred. 

PREETI GUNDECHA VS. BOARD OF REVIEW AND DB SERVICES NEW JERSEY, INC. A-3128-13T1

PREETI GUNDECHA VS. BOARD OF REVIEW AND DB SERVICES NEW JERSEY, INC. 
A-3128-13T1 
In this case of first impression we discuss the localization rule contained in the unemployment benefits statute, N.J.S.A. 43:21-19(i)(5), and its application to telecommuters. Claimant was employed by a New Jersey company. At all relevant times she worked from her home in North Carolina. When her employment was terminated, she applied for unemployment benefits in New Jersey. 
We find the employee's physical presence to be the determinative factor in construing the localization rule when applied to an interstate telecommuter. Claimant did all of her work from her home in North Carolina. Therefore, she should pursue her application for benefits in North Carolina, not New Jersey. 
06/24/15 

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

BRIAN DUNKLEY VS. S. CORALUZZO PETROLEUM TRANSPORTERS 
A-3252-12T1 
On March 16, 2015, the Supreme Court remanded this matter, in light of its recent opinion in Aguas v. State, 220 N.J. 494 (2015), which discussed the viability of an employer's anti-harassment policy as an affirmative defense to vicarious liability amidst an employee's claims for supervisory sexual harassment and hostile work environment. 

We reconsidered plaintiff's appeal from the summary judgement dismissal of his complaint asserting claims against his employer for direct negligence, vicarious liability, and constructive discharge under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiff maintained he was the victim of multiple racially discriminating remarks made by his supervisor and alleged the employer's policy failed to effectively respond to and redress the harassing conduct. The LAD claims, as well as the employer's asserted defenses, were examined in light of the standards presented in Agaus. 

EWING OIL, INC. VS. JOHN T. BURNETT, INC., ET AL. A-2770-13T1

EWING OIL, INC. VS. JOHN T. BURNETT, INC., ET AL. 
A-2770-13T1 
We examine the enforceability of a foreign judgment entered pursuant to a cognovit provision, which implicates the Full Faith and Credit clause and a defendant's due process rights of notice and an opportunity to be heard. 

Despite this state's refusal to permit judgments entered under confession clauses, courts remain bound to recognize judgments entered in another state whose procedure complies with due process. We decline to overturn precedent and reject defendant's "public policy" concerns. We affirm domestication of foreign confessed judgments is permissible so long as due process was knowingly and voluntarily waived and the judgment was obtained pursuant to the procedure of the forum state. We recite the analysis to determine whether the due process requirements of reasonable notice and opportunity to be heard are knowingly and voluntarily waived, as well as the necessary post-judgment procedure in the sister state. 

ABIGAIL GINSBERG, ET AL. VS. QUEST DIAGNOSTICS, INC., ET AL. A-1387-14T3/A-1388-

ABIGAIL GINSBERG, ET AL. VS. QUEST DIAGNOSTICS, INC., ET AL. 
A-1387-14T3/A-1388-
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. 

Monday, September 7, 2015

Condo Assoc and management co may be liable for fall down CUIYUN QIAN, Plaintiff-Appellant, v. TOLL BROTHERS INC.

Condo Assoc and management co may be liable for fall down 
CUIYUN QIAN, Plaintiff-Appellant,
v.
TOLL BROTHERS INC., INTEGRA MANAGEMENT CORP.,
THE VILLAS AT CRANBURY BROOK HOMEOWNERS ASSOCIATION, Defendants-Respondents, and
LANDSCAPE MAINTENANCE SERVICES, Defendant.
A-95
073982
SUPREME COURT OF NEW JERSEY

August 12, 2015

ALBIN, J., writing for a unanimous Court.
In this appeal, the Court considers whether sidewalk immunity applied in Luchejko v. City of Hoboken, 207 N.J. 191 (2011) (Luchejko), in the context of injuries that occurred on a public sidewalk adjoining a residential condominium community, is applicable to claims for personal injuries sustained on a private sidewalk owned and controlled by a homeowners association of a common-interest community.
Plaintiff and her husband resided in a home at the Villas at Cranbury Brook (Villas), a common- interest community, in the Township of Plainsboro. The homeowners at the Villas take title only to their dwelling units; all other areas, including the sidewalks and walkways, are common area property owned by the homeowners association and the recreation association. Homeowners are charged monthly assessments for the maintenance of the common areas, which pay for services such as snow and ice removal from the sidewalks. Although the Villas is not a gated community, the general public does not have an easement to use the sidewalks. Under the community's certificate of incorporation and by-laws, the homeowners association is responsible for the maintenance of the community's common areas.
On December 19, 2008, a snowstorm with freezing rain led to the accumulation of approximately one-and-a-half inches of ice on the
sidewalks and streets of the Villas. At the request of the homeowners association, a landscape contractor salted the roadways, but the association did not request that the common sidewalks and walkways also be cleared. Two days later, on December 21, 2008, additional freezing rain accumulated. The landscape contractor did not apply any salt to the roadways or sidewalks that day. That afternoon, plaintiff and her husband walked through the Villas to a food market; on their way back to their home, plaintiff slipped and fell on ice on a common-area sidewalk within the community, injuring her wrist and shoulder.
Plaintiff sued the developer of the community, the management company, the homeowners association, and the landscape contractor to recover for the personal injuries that she sustained. The trial court granted summary judgment to the homeowners association and the management company, and dismissed plaintiff's complaint. The trial court concluded that the private sidewalks in the community were the functional equivalent of the public sidewalk for which the Court conferred immunity in Luchejko. The Appellate Division affirmed that determination in an unpublished decision.
The Court granted plaintiff's petition for certification. 217 N.J. 623 (2014).
HELD: The immunity of a property owner from claims for injuries on a public sidewalk addressed in Luchejko does not apply to bar a claim for personal injuries against the homeowners association and management company of the common-interest community because the sidewalk on which plaintiff fell on ice constitutes a private sidewalk, as it is part of the common area owned by the homeowners association, and the association's by-laws and statutory obligations require the association to 
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Qian v. Toll Bros. Inc. (N.J., 2015)
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manage and maintain the community's common areas.
1. In reviewing a grant of summary judgment, the court applies the same standards under Rule 4:46-2(c) that govern the trial court. A court must view the evidence in the light most favorable to the non- moving party. Summary judgment should not be granted unless the record reveals no genuine issue as to any material fact, and the moving party is entitled to a judgment or order as a matter of law. In reviewing the law, the court need not defer to the interpretative conclusions of the trial court or the Appellate Division. (pp. 13-14)
2. At common law, both commercial and residential property owners were under no duty to keep the public sidewalk adjoining their premises free of snow and ice, and therefore were not liable for the condition of the sidewalk caused by the elements. An exception was then created for commercial property, imposing a duty on the owner to take reasonable measures to maintain an adjoining public sidewalk for the safety of pedestrians, including the removal of snow or ice, as appropriate, and rendering the property owner liable for injuries caused by negligent failure to maintain the sidewalk in reasonably good condition. Residential property owners have no similar common law duty with respect to a public sidewalk. (pp. 14-15)
3. The duty of care that a landowner owes to a pedestrian on a sidewalk on or abutting his property depends on whether the sidewalk is characterized as a public or private sidewalk. Generally, whether a sidewalk is classified as public or private depends on who owns or controls the walkway, rather than who uses it. A critical factor in determining whether a sidewalk is public is whether the municipality has sufficient control over or responsibility for the maintenance and repair of the sidewalk. (pp. 17-18)
4. An owner of private property has a duty to exercise reasonable care to protect those entering the property from dangerous conditions on the property. A duty therefore exists to make private walkways on the property reasonably safe, and, to the extent reasonable, to clear snow and ice that presents a danger to known or expected visitors. (pp. 17-18)
5. Under the standards stated above and the specific facts of this matter, the walkway in the Villas on which plaintiff fell is a private, rather than a public, sidewalk. The certificate of incorporation and the
association's by-laws classify the sidewalks and interior roadways as common property. Under the Condominium Act, a homeowners association is responsible for maintaining the common elements of the community, and obtaining insurance for liability resulting from accidents within the common areas. Nothing in the record suggests that the municipality has control of, or responsibility for, the community's interior sidewalks. Additionally, the limited immunity that the Legislature conferred on homeowners associations under N.J.S.A. 2A:62A-13, protecting against liability from certain lawsuits by unit owners, confirms the application of premises liability to a community's common elements because, without the potential for liability, there would be no need for the grant of immunity. There is no bar in the immunity provision to a negligence action against the association by a non-unit owner injured on the community's common areas. (pp. 18-21)
6. The decision in Luchejko is not controlling here. Luchejko reaffirmed the distinction between commercial and residential property owners where injuries occur on a public sidewalk, and did not address a private sidewalk that is part of the common area of the community. There are also stark factual differences between Luchejko and this case. In contrast to this case, the public sidewalk addressed in Luchejko was not part of the common area of the condominium. Additionally, a public easement existed over the sidewalk in Luchejko; there is no public easement here. The condominium's by-laws and other documents did not impose any duty upon the association in Luchejko to maintain and clear the public sidewalk of snow and ice, or to obtain liability insurance covering the sidewalk; in contrast, such duties exist here. The Villas homeowners association collected maintenance fees from the homeowners to ensure that all common property, including the sidewalk on which plaintiff was injured, would be reasonably safe. No such fees were collected to maintain the public sidewalk in Luchejko. (pp. 22-24)
7. The Court does not address whether plaintiff should be deemed a unit owner for purposes of the immunity provision in the association's by-laws precluding liability for negligence by unit owners (noting that plaintiff's son is listed as owner in the deed, but plaintiff and her husband reside in the unit), because this issue was not addressed by the trial court or the Appellate Division, and must be explored further on remand. (p. 24)
The judgment of the Appellate Division, which
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Qian v. Toll Bros. Inc. (N.J., 2015)
page3image1280
affirmed the grant of summary judgment by the trial court, is REVERSED, and the matter is REMANDED to the trial court for further proceedings consistent with this decision.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN's opinion. JUSTICE FERNANDEZ-VINA did not participate.
On certification to the Superior Court, Appellate Division.
Nicholas J. Leonardis argued the cause for appellant (Stathis & Leonardis, attorneys; Mr. Leonardis and Randi S. Greenberg, on the briefs).
Matthew J. Tharney argued the cause for respondents (McCarter & English, attorneys; Mr. Tharney, Natalie S. Watson, and Ryan A. Richman, on the briefs).
Ronald B. Grayzel argued the cause for amicus curiae New Jersey Association of Justice (Levinson Axelrod, attorneys).
JUSTICE ALBIN delivered the opinion of the Court.
New Jersey's common law imposes a duty on commercial landowners to clear public sidewalks abutting their properties of snow and ice for the safe travel of pedestrians. No corresponding duty is imposed on residential landowners. We adhered to that distinction between commercial and residential landowners in Luchejko v. City of Hoboken, 207 N.J. 191, 211 (2011), a case involving a pedestrian who slipped on ice on a public sidewalk abutting a residential condominium building. We held that the condominium association and management company were immune from suit for allegedly failing to clear ice from the public sidewalk. Id. at 195, 211.
In this personal-injury case, a resident fell on ice on a private sidewalk within a common-interest community. We must determine whether the community's homeowners association and its management company had the duty to clear snow and ice from the community's private sidewalks. Under the community's certificate of incorporation and by- laws -- as well as by statute -- the homeowners association is responsible for the maintenance of the common elements, which include the sidewalks. Both the trial court and the Appellate Division concluded that the private sidewalks in this case were the
functional equivalent of the public sidewalk on which we conferred immunity in Luchejko. The trial court granted summary judgment to the homeowners association and management company and dismissed plaintiff's complaint, and the Appellate Division affirmed.
We now reverse. Residential public-sidewalk immunity does not apply in the case of a sidewalk privately owned by a common-interest community. Who owns or controls the sidewalk, not who uses it, is the key distinguishing point between a public and private sidewalk. Here, the by-laws of the homeowners association spell out the association's duty to manage and maintain the community's common areas, including sidewalks. This association also has a statutory obligation to manage the common elements of which the sidewalks are a part. See N.J.S.A. 46:8B-14(a). Last, the limited immunity given to "a qualified common interest community" under N.J.S.A. 2A:62A-13 is a legislative acknowledgement that common-law tort liability extends to the private areas of such a community. 

Friday, September 4, 2015

H.S.P. v. J.K. (A-114-13;

 H.S.P. v. J.K. (A-114-13; 074241) 
K.G. v. M.S. (Deceased) (A-117-13; 074527) 

When faced with a request for an SIJ predicate order, the Family Part’s sole task is to apply New Jersey law to make factual findings with regard to each of the requirements listed in 8 C.F.R. § 204.11. The Family Part does not have jurisdiction to grant or deny applications for immigration relief. 

Department of Children & Families v. E.D.-O. (A-109-13


 Department of Children & Families v. E.D.-O. (A-109-13; 073916) 

N.J.S.A. 9:6-8.21(c)(4)(b) requires a finding that the parent’s conduct presents an imminent risk of harm to the child at the time of the event that triggered the Division’s intervention. In addition, the determination of whether a parent’s conduct is negligent or grossly negligent requires an evaluation of the totality of the circumstances, which can only occur through a hearing. The Division should have referred E.D.-O.’s appeal to the OAL for a hearing. 

Citizens United Reciprocal Exchange v. Sabrina A. Perez, et al. (A-67-13

Citizens United Reciprocal Exchange v. Sabrina A. Perez, et al. (A-67-13; 073384) 
Where a policyholder elects to add the basic policy’s optional $10,000 coverage for third-party bodily injury in the original contract, the insurer shall be liable to innocent third parties for the contracted $10,000 amount as the minimal amount available under 

New Jersey’s compulsory system of automobile insurance coverage, even when that basic policy is later voided due to a fraudulent application. In contrast, when an insured elects not to add the basic policy’s optional $10,000 coverage in their original contract, the insurer shall not be held liable to any injured, innocent third-party claimants under that contract. 

Cuiyun Qian v. Toll Brothers, Inc. (A-95-13

Cuiyun Qian v. Toll Brothers, Inc. (A-95-13; 073982) 
The immunity of a property owner from claims for injuries on a public sidewalk addressed in Luchejko does not apply to bar a claim for personal injuries against the homeowners association and management company of the common-interest community because the sidewalk on which plaintiff fell on ice constitutes a private sidewalk, as it is part of the common area owned by the homeowners association, and the association’s by-laws and statutory obligations require the association to manage and maintain the community’s common areas. 

Hon. Dana L. Redd v. Vance Bowman (A-71/72

Hon. Dana L. Redd v. Vance Bowman (A-71/72/73-13; 073567) 
The Faulkner Act initiated, proposed ordinance does not constitute an unlawful restraint on the future exercise of the City of Camden’s legislative power and is not preempted by the Municipal Rehabilitation and Economic Recovery Act or any of the state’s fiscal statutes. However, the ordinance, as drafted, is out of date, inaccurate, and misleading. The challenge to the police reorganization must start anew with an ordinance that reflects the facts as they now stand. 

John Ross v. Karen Lowitz (A-101-13;

John Ross v. Karen Lowitz (A-101-13; 074200) 
The Court finds no basis for the claims of private nuisance or trespass against the homeowner defendants because there exists no proof of negligence, recklessness, intentional conduct, or the conduct of an abnormally dangerous activity, by these parties. Additionally, the Court declines to expand these causes of action to impose strict liability upon defendants. Plaintiffs cannot proceed with a direct claim against the defendant insurers for breach of the implied covenant of good faith and fair dealing contained in the insurance contracts because they do not hold an assignment of rights from the named insured, and there is no evidence that the named insured or her insurers agreed to recognize plaintiffs as third-party beneficiaries of the insurance contracts. 

Elizabeth Gnall v. James Gnall (A-52-13;

Elizabeth Gnall v. James Gnall (A-52-13; 073321) 
In determining a request for alimony, all of the factors enumerated in N.J.S.A. 2A:14-23(b) must be considered; the duration of the marriage is only one such factor. The Appellate Division erroneously created a bright-line rule that a fifteen-year marriage requires an award of permanent alimony, contrary to the need to consider all of the statutory factors. The trial court also improperly relied upon the duration of the marriage over the other statutory factors in determining that, since the marriage was not one of twenty-five to thirty years, permanent alimony was not warranted, and therefore awarded limited duration alimony. 

Rolando Fernandes v. DAR Development Corp. (A-37-13

Rolando Fernandes v. DAR Development Corp. (A-37-13; 073001) 
In negligence claims by injured workers against third parties, there is no sound reason to depart from settled precedent that an employee’s negligence may be submitted to the jury when evidence has been adduced that the injured employee unreasonably confronted a known risk and had no meaningful choice in the manner in which he completed the task. Here, the evidence produced at trial provided no basis to submit the issue of plaintiff’s negligence to the jury. 

Allstate New Jersey Insurance Co. v. Gregorio Lajara (A-70-13;

Allstate New Jersey Insurance Co. v. Gregorio Lajara (A-70-13; 073511) 
The right to a civil jury trial provided by Article I, Paragraph 9 of the New Jersey Constitution applies to private-action claims seeking compensatory and punitive damages under the Insurance Fraud Prevention Act, N.J.S.A. 17:33A-1 to -30. 

Joel S. Lippman, M.D. v. Ethicon, Inc. and Johnson & Johnson,

Joel S. Lippman, M.D. v. Ethicon, Inc. and Johnson & Johnson, Inc. (A-65/66-13; 073324) 
CEPA’s protections extend to the performance of regular job duties by watchdog employees. Unless and until the Legislature expresses its intent to differentiate among the classes of employees who are entitled to CEPA protection, there can be no additional burden imposed on watchdog employees seeking CEPA protection. 

IMO Borough of Keyport v. Local 68 (A-43/44-13

IMO Borough of Keyport v. Local 68 (A-43/44-13; 072361) 
The three municipalities in this case acted for reasons of economy based on municipal fiscal distress 

existing at the time, rendering the management choice to use a temporary or permanent layoff solution one that constituted a managerial prerogative not subject to negotiation. The layoff actions at issue in this consolidated appeal constituted non-negotiable subjects under prong three of the Local 195 test for negotiability. Local 195, IFPTE v. State, 88 N.J. 393 (1982).