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Sunday, December 18, 2016

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. S.G.IN THE MATTER OF A.G. AND G.W.G. A-2533-14T3


 NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. S.G.IN THE MATTER OF A.G. AND G.W.G. 
A-2533-14T3 
Defendant S.G. appeals the trial court's finding that she abused or neglected her two-year-old daughter, in violation of N.J.S.A. 9:6-8.21(c). The trial court found that because defendant permitted drug use and drug dealing in the home where she and her daughter resided, and took no discernable steps to mitigate her daughter's exposure, her conduct was reckless and put her child at substantial risk of harm. 
No witnesses testified at the fact-finding hearing. The parties agreed to forego the presentation of witnesses and to have the trial court decide material facts in dispute based solely on redacted copies of a police report detailing the events leading up to and occurring on the date of the drug raid and investigation summaries prepared by the Division of Child Protection and Permanency. 

Since a determination of abuse and neglect requires a fact-sensitive analysis of particularized evidence, we hold that witness testimony was necessary to provide the court with the necessary facts to determine whether defendant exercised the requisite minimum degree of care under the circumstances. Merely reciting information found in redacted documentary evidence does not constitute fact-finding. This is especially so when there are unresolved and disputed details regarding facts of consequence to the determination of an abuse or neglect finding. Thus, although the parties acquiesced to a trial "on the papers," the court would have been better equipped to perform its role as fact-finder had these matters been developed more fully with evidence at a testimonial hearing. 

Sunday, December 11, 2016

DEBRA WARREN, ET AL. VS. CHRISTOPHER P. MUENZEN M.D., ET AL. A-1949-15T4


DEBRA WARREN, ET AL. VS. CHRISTOPHER P. MUENZEN M.D.,
          ET AL.
A-1949-15T4
In 2009, the Legislature amended the Survivor Act, N.J.S.A. 2A:15-3, for the first time including a statute of limitations requiring "[e]very action" under the Act "be commenced within two years after the death of the decedent . . . ." The 2009 Amendment also provided that if the death was a homicide, an action against "a defendant [who had] been convicted, found not guilty by reason of insanity or adjudicated delinquent . . . may be brought at any time." In this regard, the 2009 Amendment mirrored an earlier amendment to the Wrongful Death Act (the WDA).
We granted leave to appeal in this case, in which plaintiff, executrix of her husband's estate, filed a medical malpractice complaint alleging causes of action under the Survivor Act and the WDA. The complaint was not filed within the two-year statute of limitation applicable to bodily injury, N.J.S.A. 2A:14-2, but was filed within two years of the decedent's death. In reversing the motion judge's denial of partial summary judgment to defendant on the Survivor Act claims, we concluded that construing the 2009 Amendment literally would lead to absurd results, contrary to the Legislature's stated intention when adopting the 2009 Amendment and contrary to a number of statutes of limitation found elsewhere in Title 2A. 

MARK R. KRZYKALSKI, ET AL. VS. DAVID T. TINDALL A-2539-14T3

MARK R. KRZYKALSKI, ET AL. VS. DAVID T. TINDALL
          A-2539-14T3/A-2774-14T3(CONSOLIDATED)
Plaintiff commenced this personal injury suit against defendant, whose vehicle rear-ended plaintiff's, as well as a fictitious defendant, an unknown driver, who had cut across the lane in which plaintiff was driving to make a left turn. The
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trial judge permitted the jury to determine whether both defendant and the unknown driver were negligent and, if so, to ascertain their respective responsibility for plaintiff's injuries; both were found negligent, and the unknown driver was found 97% responsible. The court held that the trial judge properly allowed the jury to apportion responsibility between the known and unknown defendants, extending Cockerline v. Menendez, 411 N.J. Super. 596 (App. Div.), certif. denied, 201 N.J. 499 (2010), which differed only because, in Cockerline, the plaintiff had already settled with the UM insurer and thereby fixed the unknown driver's contribution, and here no such settlement was reached and no proceedings had occurred with respect to the UM carrier.
     Judge Leone filed a concurring opinion.

Sunday, December 4, 2016

HUNY & BH ASSOCIATES INC, ET AL. VS. AVI SILBERBERG, ET AL. A-4569-15T1


HUNY & BH ASSOCIATES INC, ET AL. VS. AVI SILBERBERG,
          ET AL.
A-4569-15T1
Our court has split on the question whether an order denying intervention as of right under Rule 4:33-1 is appealable as of right as a final order. Compare Grober v. Kahn, 88 N.J. Super. 343 360 (App. Div. 1965) (order appealable as a right), rev'd on other grounds, 47 N.J. 135 (1966), with Gov't Sec. Co. v. Waire, 94 N.J. Super. 586, 588-89 (App. Div.) (characterizing appeal as interlocutory, without discussing Grober), certif. denied, 50 N.J. 84 (1967). In this case, we deem it consistent with New Jersey practice and policy to treat the denial of a motion to intervene as of right as an interlocutory order, for which there is no right to appeal. We conclude that federal practice, upon which the Grober panel relied, is not a persuasive model.
In a dissenting opinion, Judge Fisher agrees there is no right to appeal from the denial of a motion to intervene as of right. But, rather than dismiss the appeal, he would grant leave to appeal, stating that the court should liberally indulge applications for interlocutory review of such orders. 

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO VS. NEW JERSEY CIVIL SERVICE COMMISSION I/M/O JOB BANDING FOR SOFTWARE DEVELOPMENT SPECIALIST 1

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO VS. NEW
          JERSEY CIVIL SERVICE COMMISSION
          I/M/O JOB BANDING FOR SOFTWARE DEVELOPMENT
          SPECIALIST 1 AND 2, AND NETWORK ADMINISTRATOR 1 AND 2,
          OFFICE OF INFORMATION TECHNOLOGY
          I/M/O CHANGES IN THE STATE CLASSIFICATION
          PLAN AND JOB BANDING REQUEST, DEPARTMENT OF
          TRANSPORTATION
          A-4912-13T3/A-3041-14T3/A-0230-15T3/A-0232-15T3/ A-
          0274-15T3/ A-0275-15T3 (CONSOLIDATED)
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New Jersey State Legislature and other parties
The
challenged several administrative agency decisions rendered by the Civil Service Commission (CSC) pertaining to a Job Banding Rule (the Rule), N.J.A.C. 4A:3-3.2A. The CSC adopted and implemented the Rule after the Legislature invoked its veto power, pursuant to N.J. Const. art. V, § 4, ¶ 6 (the Legislative Review Clause), finding in numerous concurrent resolutions that the Rule conflicted with the Civil Service Act (CSA), N.J.S.A. 11A:1-1 to 12-6, which incorporated the text of N.J. Const. art. VII, § 1, ¶ 2.


We concluded that the Legislature is entitled to substantial deference when it exercises its constitutional power to invalidate an administrative rule or regulation pursuant to the Legislative Review Clause. We held, however, that we may reverse the Legislature's invalidation of an administrative executive rule or regulation if (1) the Legislature has not complied with the procedural requirements of the Legislative Review Clause; (2) its action violates the protections afforded by the Federal or New Jersey Constitution; or (3) the Legislature's concurrent resolution amounts to a patently erroneous interpretation of "the language of the statute which the rule or regulation is intended to implement."
We reversed the decisions and concluded that the Legislature validly exercised its authority under the Legislative Review Clause. We therefore set aside the Rule, in all of its amended forms.