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Friday, May 13, 2016

IN THE MATTER OF THE ESTATE OF SOLOMON Z. BALK, DECEASED A-1197-14T2

 IN THE MATTER OF THE ESTATE OF SOLOMON Z. BALK, DECEASED 
A-1197-14T2 
The terms of a promissory note entered into on June 4, 2007 as a settlement between the parties required an initial payment and four installment payments to be made at specific times thereafter. Although the promisor remitted $37,000 towards the $800,000 note over eighteen months, he failed to pay the initial sum or make the installment payments in full. 
On June 2, 2014, the promisee moved to enforce the settlement agreement and enter judgment. The trial court concluded that New Jersey's six-year statute of limitations was applicable (contrary to Pennsylvania's four-year statute based on a choice-of-law analysis not a subject of this appeal) and applied the installment contract approach to determine the accrual date of the claim. 

As there was no repudiation or total breach of the promissory note, the judge correctly applied the installment method. Under this approach, a new statute of limitations begins to run against each installment when it becomes due. The promisee is entitled to all payments which became due on and after June 3, 2008. 

A.L., JR., AND A.K.L. A-4905-14T2

 A.L., JR., AND A.K.L. 
A-4905-14T2 

A biological mother succeeds in her appeal of the trial court's denial of her request to testify after the close of evidence. She did not appear for her termination of parental rights trial, but came to court seeking to testify on the day the judge was prepared to render his decision. A parent facing the termination of parental rights is entitled to every reasonable opportunity to produce evidence. If a parent seeks to reopen the record to testify after the close of evidence, the trial court is constitutionally obligated to grant that request as long as it does not interfere with the children's essential and overriding interest in stability and permanency. 

CITIZENS UNITED RECIPROCAL EXCHANGE VS. NORTHERN NJ ORTHOPEDIC SPECIALISTS A-0945-14T2

CITIZENS UNITED RECIPROCAL EXCHANGE VS. NORTHERN NJ 
ORTHOPEDIC SPECIALISTS 
A-0945-14T2 

PIP arbitration procedures permit a summary "action filed pursuant to N.J.S.A. 2A:23A-13 for review of the award." N.J.A.C. 11:3-5.6(g). Under N.J.S.A. 2A:23A-13(a), "[a] party to an alternative [dispute] resolution proceeding shall commence a summary application in the Superior Court for its vacation, modification or correction within 45 days after the award is delivered to the applicant, or within 30 days after receipt of an award modified pursuant to [N.J.S.A. 2A:23A-12(d)]." The Appellate Division holds that if a party files an application to modify under N.J.S.A. 2A:23A-12(d), or an application to modify or clarify under the rules of the PIP dispute resolution organization, a party must file any summary action within 30 days after receipt of the order resolving the application, regardless of whether the order grants or denies modification or clarification. 

Thursday, May 12, 2016

PATRICIA T. CONN, ETC. VS. BABYLIN REBUSTILLO, ET AL. A-1421-15T3

PATRICIA T. CONN, ETC. VS. BABYLIN REBUSTILLO, ET AL. 
A-1421-15T3 
The Patient Safety Act (PSA), N.J.S.A. 26:2H-12.23 to -12.25, establishes an absolute privilege for two categories of documents. N.J.S.A. 26:2H-12.25(f) (subsection (f) privilege) applies to the first category, which consists of documents received by the Department of Health (the Department) pursuant to the mandatory reporting requirement, N.J.S.A. 26:2H-12.25(c) (subsection (c)) or the voluntary disclosure provision, N.J.S.A. 26:2H-12.25(e) (subsection (e)). N.J.S.A. 26:2H-12.25(g) provides a similar privilege (subsection (g) privilege) to a second category of documents, developed as part of a "self-critical analysis" that might never be provided to the 

Department. In this interlocutory appeal, we review the statutory criteria and scope of the subsection (f) privilege and clarify the distinction between the thresholds for the application of the subsection (f) and subsection (g) privileges. We conclude: the subsection (f) privilege is not subject to review to determine whether the health care facility complied with the "process requirements" set forth in the PSA; the privilege covers all "documents, materials, or information received by the department" pursuant to N.J.S.A. 26:28-12.25(c) or (e); and attaches to those items upon receipt by the Department. 

VANESSA RIVERA VS. ELMER F. MCCRAY, III, AND NEW JERSEY RE-INSURANCE COMPANY A-2337-14T1

VANESSA RIVERA VS. ELMER F. MCCRAY, III, AND NEW JERSEY RE-INSURANCE COMPANY 
A-2337-14T1 

This appeal requires us to interpret an underinsured motorist (UIM) coverage step-down provision in a personal automobile insurance policy, issued by defendant New Jersey Re-Insurance Company (NJM). The issue presented is whether a "special policy," see N.J.S.A. 39:6A-3.3, which provides no UIM coverage at all, provides "similar coverage" so as to trigger the step-down provision and reduce UIM coverage to zero. Based on the plain language of the NJM policy and well-established principles of insurance contract interpretation, we conclude it does not. We therefore reverse the trial court's order dismissing plaintiff's claim to UIM coverage under the NJM policy. 

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. K.G. AND V.M., SR. IN THE MATTER OF V.M., JR. A-5370-13T3

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY 
VS. K.G. AND V.M., SR. IN THE MATTER OF V.M., JR. 
A-5370-13T3 

In this Title 9 case, defendant neglected her baby when she left him in the care of her older teenage son who had a serious cognitive disability. Applying the totality of the circumstances test, we agreed with the trial judge that defendant's conduct constituted gross negligence. 

A.T., AN INFANT BY HER MOTHER AND NATURAL GUARDIAN, T.T., AND T.T., INDIVIDUALLY VS. M. COHEN, M.D., ET AL. A-0589-14T1

A.T., AN INFANT BY HER MOTHER AND NATURAL GUARDIAN, 
T.T., AND T.T., INDIVIDUALLY VS. M. COHEN, M.D., ET AL. 
A-0589-14T1 
The issue in this medical malpractice case is whether a minor plaintiff can take a voluntary dismissal without prejudice under Rule 4:37-1(b) to avoid a dismissal with prejudice of her complaint for the failure to provide an affidavit of merit (AOM) within the required timeframe. The court concludes that Rule 4:37-1(b) cannot be used to circumvent the time strictures in the AOM statute even if the statute of limitations has not expired. 
Plaintiff's counsel failed to file an AOM within 120 days of the filing of the answer. No extraordinary circumstances were presented; just an "oversight" of counsel. After defendants moved for summary judgment, counsel requested leave to take a voluntary dismissal under Rule 4:37-1(b), reasoning that there remained many years until the expiration of the statute of limitations due to plaintiff's status as a minor and there was no prejudice to defendants. 
The court finds that permitting a voluntary dismissal in these circumstances would render the AOM statute and its underlying purpose meaningless. The minor's claim was pursued by her guardian ad litem and she was represented by counsel. The Legislature did not choose to carve out an exception for minors under the AOM statute as it has done with the statute of limitations in tort cases. 
Judge Fisher dissents, concluding that a trial judge should have the authority to exercise discretion and grant a voluntary dismissal, if appropriate, to preserve the future of a minor's malpractice action. He notes the protections afforded minors, including the equitable tolling of a minor's suit under the 

Wrongful Death Act and the process requiring judicial approval of settlement reached on behalf of minors, R. 4:44. He finds the minimal prejudice incurred by defendants can be addressed by the trial judge with the imposition of any terms necessary to alleviate that harm upon the re-filing of the complaint. 

STUART SACKMAN, ET AL. VS. NEW JERSEY MANUFACTURERS INSURANCE COMPANY A-3230-13T4

STUART SACKMAN, ET AL. VS. NEW JERSEY MANUFACTURERS INSURANCE COMPANY 
A-3230-13T4 
In this UIM case, the policy issued by NJM to plaintiff contained a verbal threshold provision pursuant to the AICRA. At trial, the tortfeasor's liability was stipulated. In this appeal, plaintiff argued the trial judge erred (1) denying his motion for a directed verdict as to permanency; (2) the brevity of the jury's deliberations is per se indicative of bias and constituted a clear miscarriage of justice; (3) NJM's counsel's reference to the tortfeasor as "defendant" in her opening statement to the jury was improper and misleading; and (4) the judge's curative instructions were insufficient and constituted reversible error. We rejected all of these arguments and affirmed. 
In Part III of this opinion we imposed a monetary sanction against plaintiff's counsel under Rule 2:9-9 because the brief he submitted in this appeal displayed an utter indifference to the standards of professional competence a tribunal is entitled to expect from an attorney admitted to practice law in this State. 

Judge Gilson concurs except for Part III of this opinion. 

CRANFORD DEVELOPMENT ASSOCIATES, LLC, ET AL. VS. TOWNSHIP OF CRANFORD, ET AL. A-5822-12T2

CRANFORD DEVELOPMENT ASSOCIATES, LLC, ET AL. VS. TOWNSHIP OF CRANFORD, ET AL. A-5822-12T2 
In this Mount Laurel case, we addressed a series of issues in affirming the trial court's decision granting plaintiff developer a builder's remedy. Under the circumstances presented, plaintiff satisfied the requirement to negotiate in good faith before filing the lawsuit. Plaintiff did not have to establish that its lawsuit was a "catalyst for change" as a separate element of its claim for a builder's remedy. Rejecting defendant's proposed "all or nothing approach" to the builder's remedy, we held that the trial court had authority to modify the builder's remedy plaintiff sought by decreasing the number of approved units. Under the facts presented, the trial court had 

discretion to appoint a special hearing examiner to review and approve plaintiff's final site plan application, in a proceeding that allowed participation by the local planning board. We rejected plaintiff's cross-appeal, holding that the New Jersey Civil Rights Act does not authorize a counsel fee award to a developer in a builder's remedy lawsuit. 

MARGO S. ARDAN VS. BOARD OF REVIEW, LOURDES MEDICAL CENTER OF BURLINGRON COUNTY, INC. AND ALLIANCE HEALTHCARE A-5826-13T2

MARGO S. ARDAN VS. BOARD OF REVIEW, LOURDES MEDICAL 
CENTER OF BURLINGRON COUNTY, INC. AND ALLIANCE 
HEALTHCARE 
A-5826-13T2 
Appellant was employed as a registered nurse at Lourdes Medical Center of Burlington County for approximately two years. She obtained a "desk job" with another employer prior to resigning from Lourdes, and told Lourdes she was resigning "to seek other opportunity." She was laid off from the second job after seven weeks and applied for unemployment benefits. 
The Deputy Director found appellant was disqualified for benefits because she left work at Lourdes voluntarily without good cause attributable to the work. For the first time on appeal to the Appeal Tribunal, appellant relied on N.J.A.C. 12:17-9.3(b) and claimed that she left Lourdes because of a medical condition that was aggravated by her working conditions and there was no other suitable work available. 
The Board ultimately determined that appellant was disqualified for benefits because she left work at Lourdes voluntarily without good cause attributable to the work. The Board accepted the Appeal Tribunal's findings that appellant left Lourdes to accept other employment; never advised Lourdes she was leaving for medical reasons; and never requested or afforded Lourdes an opportunity to provide an accommodation. We held that the Board reasonably interpreted N.J.A.C. 12:17-9.3(b) to require an employee to notify an employer of a medical condition that was aggravated by the working conditions, request an accommodation, and afford the employer an opportunity to address the matter to determine whether there was other suitable work available. 
Nearly one and one-half years after the Board's decision, the Legislature amended N.J.S.A. 43:21-5(a) to provide an exception to individuals who voluntarily leave work with one 

employer to accept work from another employer. We held that the amendment should not be retroactively applied. 

NEW JERSEY ELECTION LAW ENFORCEMENT COMMISSION VS. JOSEPH DIVINCENZO AND JORGE MARTINEZ A-1596-15T3

NEW JERSEY ELECTION LAW ENFORCEMENT COMMISSION VS. 
JOSEPH DIVINCENZO AND JORGE MARTINEZ 
A-1596-15T3 
The New Jersey Election Law Enforcement Commission (ELEC) has not had a full complement of commissioners since November 2011, when one of the commissioners died. In January 2013, ELEC authorized a complaint against respondents. At that time, one of the three commissioners recused himself and so, there were two commissioners who voted to authorize the complaint. An administrative law judge (ALJ) dismissed the complaint on the ground that ELEC did not have a quorum of members required to issue a complaint and therefore lacked jurisdiction to act. Pursuant to N.J.S.A. 52:14B-10(c), ELEC had forty-five days in which to adopt, reject or modify the ALJ's decision and was permitted to extend that time for one forty-five day period before the ALJ's decision was deemed adopted as the agency's final decision. However, ELEC could not obtain another extension of time without the consent of the respondents. Its ability to take action regarding the ALJ's decision was thwarted by the fact that a second commissioner had died, leaving only one commissioner who had not recused himself. 

As the forty-five day extension period was drawing to a close, ELEC sought emergent relief, asking this court to toll the remainder of that period until such time as the vacancies are filled. We granted ELEC leave to file an emergent motion, tolled the forty-five day period pending this decision and have held oral argument on the motion. After reviewing the arguments in light of applicable legal principles, we conclude that, notwithstanding the public interest involved and the debatable merits of the ALJ's decision, ELEC has failed to make the necessary showing, Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982), to warrant the relief sought. We therefore deny ELEC's motion for emergent relief and vacate our prior order tolling the forty-five day period. 

Cathleen Quinn v. David J. Quinn (A-5-14


 Cathleen Quinn v. David J. Quinn (A-5-14; 074411) 

An agreement to terminate alimony upon cohabitation, entered by fully informed parties, represented by independent counsel, and without any evidence of overreaching, fraud, or coercion, is enforceable. The trial court was required to apply the remedy of termination, as fashioned by the parties. 

In the Matter of Frank J. Cozzarelli (D-151-13;

 In the Matter of Frank J. Cozzarelli 
(D-151-13; 074742) 
There is clear and convincing evidence the respondent knowingly misappropriated client funds, and that his mental illness did not cause him to suffer a loss of 

competency, comprehension or will that excused his misconduct when it occurred. Respondent is not entitled to mitigation and shall be disbarred. 

Patricia Delvecchio v. Township of Bridgewater (A-25-14

Patricia Delvecchio v. Township of Bridgewater 
(A-25-14; 074936) 

The testimony of a treating physician is admissible to support a plaintiff’s disability claim under the LAD, provided that the proponent gives notice of the testimony to the adverse party, responds to discovery requests in accordance with the Rules of Court, and the testimony satisfies N.J.R.E. 701 and other applicable Rules of Evidence. Plaintiff provided the information that defendants requested in discovery regarding the proposed treating physician witnesses, and the trial court should have permitted her to present the vital testimony of these witnesses. 

Alexander Bardis v. Kitty Stinson (A-44-14

Alexander Bardis v. Kitty Stinson (A-44-14; 075208) 
The judgment of the Appellate Division is REVERSED substantially for the reasons expressed in Judge Sapp-Peterson’s dissenting opinion. The terms of plaintiffs’ commercial dwelling policy are unambiguous, and defendants properly denied plaintiffs’ claim for insurance benefits. 

IMO the Estate of Adrian J. Folcher, Jr. (A-3-14;

IMO the Estate of Adrian J. Folcher, Jr. 
(A-3-14; 074590) 

The Court declines to expand the exception to the American Rule created in In re Niles Trust, 176 N.J. 282 (2003), to a person who does not owe a fiduciary responsibility to an estate and its beneficiaries. In this case, because the confidential relationship endowed Bernice with an obligation to only her husband, and not the Estate, a fee award was not the proper vehicle to do equity. 

Innes v. Marzano-Lesnevich (A-16-14

Innes v. Marzano-Lesnevich (A-16-14; 074291) 
Defendant attorneys can be held liable for counsel fees if, as trustees and escrow agents for both Innes and Carrascosa, they intentionally breached their fiduciary obligation to Innes by releasing Victoria’s United States passport to Carrascosa without Innes’ 

permission.