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Wednesday, May 17, 2017

DIVISION OF CHILD PROTECTION AND PERMANENCY VS. J.L.G. A-1746-13T2


DIVISION OF CHILD PROTECTION AND PERMANENCY VS. J.L.G.
          A-1746-13T2(NEWLY PUBLISHED OPINION FOR MAY 17, 2017)
In this Title 9 matter, Y.A., the mother of a seven-year old child, viciously beat the child with her hand, fist, and a metal spatula, inflicting significant physical injuries that were evident and painful to the child several days later and required medical intervention. Defendant J.L.G. admitted he was present when Y.A. beat the child with her hand. He did not intercede to stop the beating; rather, he walked away into the next room to keep the child he had with Y.A. from seeing the beating continue and told Y.A. to stop hitting the child because she could get in trouble. Defendant did not report the abuse.
The trial court found that Y.A. abused or neglected the child within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b) by unreasonably inflicting excessive corporal punishment. Y.A. did not appeal. The trial court also found that defendant abused or neglected the child within the meaning of N.J.S.A. 9:6- 8.21(c)(4)(b) by failing to provide the child with proper supervision by unreasonably allowing the infliction of excessive corporal punishment by the child's mother. We affirmed. 

B.C. VS. NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY A-4805-15T4


B.C. VS. NEW JERSEY DIVISION OF CHILD PROTECTION AND
          PERMANENCY
A-4805-15T4
In the context of a grandparent visitation appeal, the court discusses the interplay between the FN abuse and neglect docket and the FD non-dissolution docket. The court reverses the dismissal of the FD grandparent visitation complaint and directs that it be heard in conjunction with the ongoing FN neglect matter by the same judge. The court also directs reconsideration of the judge's FN order banning contact between the grandfather and the children in light of the preference expressed by the mother, who has legal custody of three of the four children. 

BRIAN HEJDA VS. BELL CONTAINER CORPORATION A-3502-14T1

BRIAN HEJDA VS. BELL CONTAINER CORPORATION
          A-3502-14T1
In Puglia v. Elk Pipeline, Inc., 226 N.J. 258 (2016), our Supreme Court applied principles the United States Supreme Court clarified in Hawaiian Airlines v. Norris, 512 U.S. 246 114 S.
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Ct. 2239, 129 L. Ed. 2d 203 (1994), to conclude that an employee's state whistleblower claim was not pre-empted by § 301 of the Labor Management and Relations Act (LMRA), 29 U.S.C.A. 185(a). This appeal presents the question whether an employee- union member's disability discrimination claim under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and retaliatory discharge claim under the Workers' Compensation Law (WCL), N.J.S.A. 34:15-1 to -128.5, are pre-empted by § 301. We conclude the claims as asserted are not pre-empted because they do not require interpretation of any provision of the collective bargaining agreement between the union and employer. 

IN RE N.J.A.C. 12:17-2.1 A-4636-14T3


IN RE N.J.A.C. 12:17-2.1
          A-4636-14T3
This appeal involves a challenge to the validity of a regulation, N.J.A.C. 12:17-2.1, adopted in 2015 by the Department of Labor and Workforce Development. In that regulation, the Department defines, for the first time in codified form, the concept of "simple misconduct" by an employee that can limit his or her eligibility for unemployment benefits under the Unemployment Compensation Act ("the Act"), N.J.S.A. 43:21-1 to -56. The Department's adoption of the regulation attempted to respond to concerns this court expressed in Silver v. Board of Review, 430 N.J. Super. 44 (App. Div. 2013), regarding the need for a codified rule that distinguishes "simple misconduct" from the more stringent intermediate concept of "severe misconduct" as defined by the Legislature in a 2010 amendment to N.J.S.A. 43:21-5(b), or the most extreme category of "gross misconduct" defined in the statute.
The court invalidates the portion of the challenged regulation defining simple misconduct. It does so because the definition illogically and confusingly mixes in concepts of "negligence" with intent-based concepts such as "willful disregard," "evil design," "wrongful intent," and similar states of mind. The regulation is also flawed because it defines "simple misconduct" in certain respects as encompassing employee conduct that is at least as extreme or venal or perhaps more so than "severe misconduct."
Consequently, the Department's final agency action adopting a definition of simple misconduct within N.J.A.C. 12:17-2.1 is reversed as arbitrary and capricious, without prejudice to the Department pursuing the adoption of a substitute regulation that cures these defects and conforms with the overall statutory scheme. 

DCPP VS. R.L.M. AND J.J. IN THE MATTER OF THE GUARDIANSHIP OF R.A.J. A-2849-15T2/


DCPP VS. R.L.M. AND J.J. IN THE MATTER OF THE GUARDIANSHIP OF R.A.J.
          A-2849-15T2/A-3277-15T2
In this termination of parental rights (TPR) case, the father contends he was entitled to a new trial because he was denied his constitutional right of self-representation, which he argued is a corollary to the right to counsel under N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007). While the constitutional right to procedural due process gives rise to the right to counsel in TPR cases, there is no corollary right of self-representation, unlike in criminal cases under the Sixth Amendment. Furthermore, any non-constitutional right to proceed pro se under Rule 1:21-1(a) or arguably implied by N.J.S.A. 30:4C-15.4(a) may be relaxed if the court concludes that the parent's pro se efforts would significantly undermine the interests of the child, the State and the court in an accurate result without undue delay. Also, any denial of such non- constitutional right is not a structural error requiring a new trial. Finally, the father did not assert his alleged right of self-representation unequivocally or timely. 

SHAKEEM MALIK HOLMES VS. JERSEY CITY POLICE DEPARTMENT A-1634-15T3


SHAKEEM MALIK HOLMES VS. JERSEY CITY POLICE DEPARTMENT
          A-1634-15T3
Where police officers insulted and threatened an arrestee, the conduct was sufficiently severe that a reasonable transgender person in plaintiff's position would find the environment within the police station to be hostile, threatening and demeaning. Therefore, the trial court erred in granting summary judgment, dismissing plaintiff's Law Against Discrimination complaint alleging "hostile-environment" discrimination in a place of public accommodation. 

ALEXANDRA RODRIGUEZ VS. WAL-MART STORES, INC., ET AL. A-4137-14T3

ALEXANDRA RODRIGUEZ VS. WAL-MART STORES, INC., ET AL.
          A-4137-14T3
Plaintiff in this personal injury case appeals on several grounds from a no-cause jury verdict. Among other things, plaintiff argues that she was unduly prejudiced by the admission, over her objection, of extensive testimony from a defense medical expert opining that she had magnified her symptoms and her alleged injuries from the accident. The testifying doctor, a neurologist, was not a psychiatrist, psychologist, or other mental health specialist. Plaintiff
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contends that the admission of this expert testimony unfairly impugned her overall credibility and thereby deprived her of a fair trial on both liability and damages.
The appellate panel concludes that the expert's opinions on symptom magnification were improperly admitted, and that plaintiff was sufficiently prejudiced by that ruling to be entitled to a new jury trial on all issues. In doing so, the panel adopts the reasoning of other jurisdictions that have disallowed such expert opinions about symptom magnification, malingering, or other equivalent concepts in civil jury cases, including the Eighth Circuit's seminal opinion in Nichols v. American National Insurance Company, 154 F.3d 875 (8th Cir. 1998).
A qualified expert is not precluded, however, from providing factual testimony recounting observations the expert made about plaintiff's physical movements or responses to testing during an examination, subject to exclusionary arguments under N.J.R.E. 403 that may be asserted on a case-specific basis. Nor is a qualified expert categorically precluded from testifying that a plaintiff's subjective complaints appear to be inconsistent with objective medical test results or findings. In addition, the court does not foreclose the admission of opinion testimony concerning symptom magnification or similar concepts from a qualified expert in a non-jury case, also subject to Rule 403. 

FAIRFAX FINANCIAL HOLDINGS LIMITED, ET AL. VS. S.A.C. CAPITAL MANAGEMENT, L.L.C., ET AL. A-0963-12T1

FAIRFAX FINANCIAL HOLDINGS LIMITED, ET AL. VS. S.A.C.
          CAPITAL MANAGEMENT, L.L.C., ET AL.
A-0963-12T1
Plaintiff Fairfax Financial Holdings, a Canadian corporation, and plaintiff Crum & Forster Holdings Corp., a New Jersey corporation, commenced this action claiming that defendants New York-based hedge funds, analysts, and others involved in the New York financial market conspired in violation of racketeering laws to disparage plaintiffs so as to drive down their stock values. Some defendants profited from the alleged enterprise's actions by "shorting" plaintiffs' stock and some defendants profited in other indirect ways. After considerable discovery, including the production of millions of pages of documents and the conducting of approximately 150 depositions, all plaintiffs' RICO and common law claims were dismissed by way of summary judgment.
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In affirming in part and reversing in part, the court held, among other things: (1) the RICO claims were properly dismissed because New Jersey choice-of-law rules mandated the application of New York law, which, unlike New Jersey law, does not recognize a private civil RICO cause of action; (2) New Jersey's six-year statute of limitations applied to plaintiffs' disparagement claim rather than a shorter New York limitations period; (3) New York substantive law applied to plaintiffs' disparagement and tortious interference with prospective economic advantage claims and required that plaintiffs demonstrate special damages, which required their identification of lost customers; (4) plaintiffs' identification of 180 lost customers was sufficient to meet New York's special-damages requirement but their expert's attempt to quantify the portion of the market lost to plaintiffs as a result of the alleged disparagement did not meet New York's special-damages standard; and (5) two groups of New York defendants were properly dismissed on personal jurisdiction grounds because, among other things, plaintiffs presented insufficient evidence to support its theory on the assumption such a theory is cognizable of conspiracy-based jurisdiction. 

BRYCE PATRICK, ET AL. VS. CITY OF ELIZABETH, ET AL. A-2792-15T1

BRYCE PATRICK, ET AL. VS. CITY OF ELIZABETH, ET AL.
          A-2792-15T1
We address whether a municipality and board of education can be held to a higher standard of care under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, in these circumstances where the minor plaintiff was struck by a motor vehicle as the child crossed the street in a school zone area. Plaintiff alleged that the area was a dangerous condition, and there was inadequate signage to warn motorists of the presence of children. Plaintiff asserts that the school zone imposes a special burden on defendants.
There was no record of complaints to the municipality regarding this area, and the court is satisfied that the entities were entitled to immunity under N.J.S.A. 59:4-2 as there were insufficient proofs provided as to the existence of a dangerous condition. The decision of what type of signage and where to place it is within the discretion accorded to a municipality and is immunized under N.J.S.A. 59:2-3(a).
Defendants are also accorded immunity under N.J.S.A. 59:4-5, which provides that a public entity is not liable for "an injury caused by the failure to provide ordinary traffic signals, signs, markings or similar devices." (emphasis added).
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Plaintiff argues that a sign in a school zone is not an "ordinary" sign subject to immunity under the statute because school zones require a higher standard of care.
Although N.J.S.A. 59:4-5 does not expressly define the term "ordinary," the court uses the dictionary definition of "regular, usual, normal, common, often reoccurring and not characterized by peculiar or unusual circumstances." Black's Law Dictionary 1249 (4th ed. 1957). Nothing was presented that the roadway in question would not fit within this definition of "ordinary."
In addressing plaintiff's argument that a school zone imposes a special burden on defendants, the court notes that when the Legislature has chosen to impose a higher standard of care in a school zone, it has done so explicitly. The court references examples of increased penalties for driving while intoxicated, see N.J.S.A. 39:4-50, and enhanced charges for distributing or possessing controlled dangerous substances within a school zone, see N.J.S.A. 2C:35-7. There is no such differentiation provided in the TCA, and therefore, no evidence of such a legislative intention. Without such intention, the court declines to carve out an exception for liability under the TCA for signage in a school zone or to denote signs in a school zone as anything but "ordinary." 

KEITH WILLIAMS VS. RAYMOURS FURNITURE CO., INC. A-3450-15T4


KEITH WILLIAMS VS. RAYMOURS FURNITURE CO., INC.
          A-3450-15T4
The Division of Workers' Compensation dismissed the petition of Keith Williams for lack of jurisdiction. The judge of compensation determined that because Williams worked in New York and the accident happened there, there was no reason for New Jersey to assume jurisdiction of Williams' claim. We reverse.
As the facts are undisputed that Williams accepted employment from respondent by telephone from his home in Paterson, thereby establishing New Jersey as the place the contract was created, the law is clear that New Jersey is an appropriate forum for resolution of petitioner's claim petition, certainly in conjunction with his residency here. 

JACLYN THOMPSON VS. BOARD OF TRUSTEES, TEACHERS' PENSION AND ANNUITY FUND A-5028-14T1

JACLYN THOMPSON VS. BOARD OF TRUSTEES, TEACHERS' PENSION AND ANNUITY FUND
A-5028-14T1
Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 34 (2008), held that to obtain accidental disability benefits for a purely mental disability, "[t]he disability must result from direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person." Following the example of Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14 (2011), the Appellate Division holds the Patterson requirement applies to mental disability arising from incidents involving mental and physical stressors if any physical injury was temporary or minor, despite Caminiti v. Bd. of Trs., Police & Firemen's Ret. Sys., 431 N.J. Super. 1 (App. Div. 2013).
The majority rules that the incidents triggering petitioner's mental disability did not meet the Patterson requirement and that her diagnosis of PTSD was not dispositive. Judge Ostrer dissents from that ruling.
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The court rules the incidents were undesigned and unexpected given petitioner's lack of training. 

NEW YORK-CONNECTICUT DEVELOPMENT CORP. VS. BLINDS-TO- GO (U.S.) INC. VS. ANTHONY NARDOZZI, ET AL. UNIQUE MECHANICAL SERVICES, LLC. VS. NEW YORK- CONNECTICUT DEVELOPMENT CORP. COUNTY GLASS & METAL INSTALLERS, INC. VS. NEW YORK- CONNECTICUT DEVELOPMENT CORP., ET AL. A-5660-14T4 page8image4640 page8image4800


NEW YORK-CONNECTICUT DEVELOPMENT CORP. VS. BLINDS-TO- GO (U.S.) INC. VS. ANTHONY NARDOZZI, ET AL.
UNIQUE MECHANICAL SERVICES, LLC. VS. NEW YORK- CONNECTICUT DEVELOPMENT CORP.

COUNTY GLASS & METAL INSTALLERS, INC. VS. NEW YORK- CONNECTICUT DEVELOPMENT CORP., ET AL.
A-5660-14T4

page8image4640 page8image4800 page8image4960 page8image5120 page8image5280 page8image5440
In this matter arising out of the construction of a building, we address whether a verdict can be sustained where the jury found that plaintiff, New York-Connecticut Development Corp. (NYCT), breached the pertinent contract, but nevertheless, awarded it damages under a quantum meruit theory.
Quantum meruit is a form of quasi-contractual recovery and is "wholly unlike an express or implied-in-fact contract in that it is 'imposed by the law for the purpose of bringing about justice without reference to the intention of the parties.'" St. Barnabas Med. Ctr. v. Cnty. of Essex, 111 N.J. 67, 79 (1988) (citations omitted). It has long been recognized, however, "that the existence of an express contract excludes the awarding of relief regarding the same subject matter based on quantum meruit." Kas Oriental Rugs v. Ellman, 394 N.J. Super. 278, 286 (App. Div. 2007).
Although a party may plead and pursue alternative, and even inconsistent theories, Kas, supra, 394 N.J. Super. at 287, a party is not entitled to recover on inconsistent theories. Ibid. (emphasis added). Once the jury determined that an express contract existed between the parties, it was erroneous for it to be directed to a consideration of quantum meruit. The jury instructions and verdict sheet both misstated the applicable legal principles of contract law. Consequently, we are constrained to reverse and remand for a new trial. 

N.E., AS LEGAL GUARDIAN FOR INFANT J.V. VS. STATE OF NEW JERSEY, ET AL. A-3717-13T2


N.E., AS LEGAL GUARDIAN FOR INFANT J.V. VS. STATE OF
          NEW JERSEY, ET AL.
A-3717-13T2
Plaintiff is the legal guardian of a child who was severely and permanently injured by the criminal acts of his biological father. Plaintiff filed a civil action against the Division and a caseworker, and his supervisor claiming it was vicariously liable for the negligent manner these employees investigated plaintiff's allegations of child abuse and parental unfitness. The trial court rejected the Division’s argument that its employees are entitled to immunity from civil liability under the Tort Claims Act. A jury found the Division 100 percent liable and awarded plaintiff a total of $165,972,503.
In this appeal, this court is required to determine whether the State of New Jersey can be held vicariously liable based on a Division caseworker’s good faith execution of this State’s child protection laws. This court holds the Division caseworkers were entitled to the qualified immunity afforded to public employees who act in good faith in the enforcement or execution of any law under N.J.S.A. 59:3-3 of the Tort Claims Act. An ordinary negligence standard is an insufficient basis to impose civil liability on a public employee involved in the execution of the law. For these reasons, this court reverses the jury's verdict and vacates the final judgment entered against defendants. 

Allstate Insurance Company v. Northfield Medical Center P.C. (A-27-15


Allstate Insurance Company v. Northfield Medical
          Center P.C. (A-27-15; 076069)
          Defendants extensively promoted a professional practice
          structure that a fact-finder could reasonably conclude
          was little more than a sham intended to evade well-
          established prohibitions and restrictions governing
          ownership and control of a medical practice by a non-
          doctor.  In light of the broad anti-fraud liability
          imposed under the IFPA, holding defendants responsible
          for promoting and assisting in the formation of an
          ineligible medical practice was not a novel or
          unanticipated application of the statute.  The trial
          court correctly applied a plain-language understanding
          of “knowing,” and its finding of a knowing violation of
          the IFPA is amply supported in this record.

Sunday, April 30, 2017

DCPP VS. R.L.M. AND J.J. IN THE MATTER OF THE GUARDIANSHIP OF R.A.J. A-2849-15T2/A-3277-15T2


DCPP VS. R.L.M. AND J.J. IN THE MATTER OF THE GUARDIANSHIP OF R.A.J.
          A-2849-15T2/A-3277-15T2
In this termination of parental rights (TPR) case, the father contends he was entitled to a new trial because he was denied his constitutional right of self-representation, which he argued is a corollary to the right to counsel under N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007). While the constitutional right to procedural due process gives rise to the right to counsel in TPR cases, there is no corollary right of self-representation, unlike in criminal cases under the Sixth Amendment. Furthermore, any non-constitutional right to proceed pro se under Rule 1:21-1(a) or arguably implied by N.J.S.A. 30:4C-15.4(a) may be relaxed if the court concludes that the parent's pro se efforts would significantly undermine the interests of the child, the State and the court in an accurate result without undue delay. Also, any denial of such non- constitutional right is not a structural error requiring a new trial. Finally, the father did not assert his alleged right of self-representation unequivocally or timely. 

SHAKEEM MALIK HOLMES VS. JERSEY CITY POLICE DEPARTMENT A-1634-15T3


SHAKEEM MALIK HOLMES VS. JERSEY CITY POLICE DEPARTMENT
          A-1634-15T3
Where police officers insulted and threatened an arrestee, the conduct was sufficiently severe that a reasonable transgender person in plaintiff's position would find the environment within the police station to be hostile, threatening and demeaning. Therefore, the trial court erred in granting summary judgment, dismissing plaintiff's Law Against Discrimination complaint alleging "hostile-environment" discrimination in a place of public accommodation. 

ALEXANDRA RODRIGUEZ VS. WAL-MART STORES, INC., ET AL. A-4137-14T3

ALEXANDRA RODRIGUEZ VS. WAL-MART STORES, INC., ET AL.
          A-4137-14T3
Plaintiff in this personal injury case appeals on several grounds from a no-cause jury verdict. Among other things, plaintiff argues that she was unduly prejudiced by the admission, over her objection, of extensive testimony from a defense medical expert opining that she had magnified her symptoms and her alleged injuries from the accident. The testifying doctor, a neurologist, was not a psychiatrist,
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psychologist, or other mental health specialist. Plaintiff contends that the admission of this expert testimony unfairly impugned her overall credibility and thereby deprived her of a fair trial on both liability and damages.
The appellate panel concludes that the expert's opinions on symptom magnification were improperly admitted, and that plaintiff was sufficiently prejudiced by that ruling to be entitled to a new jury trial on all issues. In doing so, the panel adopts the reasoning of other jurisdictions that have disallowed such expert opinions about symptom magnification, malingering, or other equivalent concepts in civil jury cases, including the Eighth Circuit's seminal opinion in Nichols v. American National Insurance Company, 154 F.3d 875 (8th Cir. 1998).
A qualified expert is not precluded, however, from providing factual testimony recounting observations the expert made about plaintiff's physical movements or responses to testing during an examination, subject to exclusionary arguments under N.J.R.E. 403 that may be asserted on a case-specific basis. Nor is a qualified expert categorically precluded from testifying that a plaintiff's subjective complaints appear to be inconsistent with objective medical test results or findings. In addition, the court does not foreclose the admission of opinion testimony concerning symptom magnification or similar concepts from a qualified expert in a non-jury case, also subject to Rule 403. 

FAIRFAX FINANCIAL HOLDINGS LIMITED, ET AL. VS. S.A.C. CAPITAL MANAGEMENT, L.L.C., ET AL. A-0963-12T1

FAIRFAX FINANCIAL HOLDINGS LIMITED, ET AL. VS. S.A.C.
          CAPITAL MANAGEMENT, L.L.C., ET AL.
A-0963-12T1
Plaintiff Fairfax Financial Holdings, a Canadian corporation, and plaintiff Crum & Forster Holdings Corp., a New Jersey corporation, commenced this action claiming that defendants New York-based hedge funds, analysts, and others involved in the New York financial market conspired in violation of racketeering laws to disparage plaintiffs so as to drive down their stock values. Some defendants profited from the alleged enterprise's actions by "shorting" plaintiffs' stock and some defendants profited in other indirect ways. After considerable discovery, including the production of millions of pages of documents and the conducting of approximately 150 depositions, all plaintiffs' RICO and common law claims were dismissed by way of summary judgment.
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In affirming in part and reversing in part, the court held, among other things: (1) the RICO claims were properly dismissed because New Jersey choice-of-law rules mandated the application of New York law, which, unlike New Jersey law, does not recognize a private civil RICO cause of action; (2) New Jersey's six-year statute of limitations applied to plaintiffs' disparagement claim rather than a shorter New York limitations period; (3) New York substantive law applied to plaintiffs' disparagement and tortious interference with prospective economic advantage claims and required that plaintiffs demonstrate special damages, which required their identification of lost customers; (4) plaintiffs' identification of 180 lost customers was sufficient to meet New York's special-damages requirement but their expert's attempt to quantify the portion of the market lost to plaintiffs as a result of the alleged disparagement did not meet New York's special-damages standard; and (5) two groups of New York defendants were properly dismissed on personal jurisdiction grounds because, among other things, plaintiffs presented insufficient evidence to support its theory on the assumption such a theory is cognizable of conspiracy-based jurisdiction. 

BRYCE PATRICK, ET AL. VS. CITY OF ELIZABETH, ET AL. A-2792-15T1

 BRYCE PATRICK, ET AL. VS. CITY OF ELIZABETH, ET AL.
          A-2792-15T1
We address whether a municipality and board of education can be held to a higher standard of care under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, in these circumstances where the minor plaintiff was struck by a motor vehicle as the child crossed the street in a school zone area. Plaintiff alleged that the area was a dangerous condition, and there was inadequate signage to warn motorists of the presence of children. Plaintiff asserts that the school zone imposes a special burden on defendants.
There was no record of complaints to the municipality regarding this area, and the court is satisfied that the entities were entitled to immunity under N.J.S.A. 59:4-2 as there were insufficient proofs provided as to the existence of a dangerous condition. The decision of what type of signage and where to place it is within the discretion accorded to a municipality and is immunized under N.J.S.A. 59:2-3(a).
Defendants are also accorded immunity under N.J.S.A. 59:4-5, which provides that a public entity is not liable for "an injury caused by the failure to provide ordinary traffic signals, signs, markings or similar devices." (emphasis added).
page3image21000

Plaintiff argues that a sign in a school zone is not an "ordinary" sign subject to immunity under the statute because school zones require a higher standard of care.
Although N.J.S.A. 59:4-5 does not expressly define the term "ordinary," the court uses the dictionary definition of "regular, usual, normal, common, often reoccurring and not characterized by peculiar or unusual circumstances." Black's Law Dictionary 1249 (4th ed. 1957). Nothing was presented that the roadway in question would not fit within this definition of "ordinary."
In addressing plaintiff's argument that a school zone imposes a special burden on defendants, the court notes that when the Legislature has chosen to impose a higher standard of care in a school zone, it has done so explicitly. The court references examples of increased penalties for driving while intoxicated, see N.J.S.A. 39:4-50, and enhanced charges for distributing or possessing controlled dangerous substances within a school zone, see N.J.S.A. 2C:35-7. There is no such differentiation provided in the TCA, and therefore, no evidence of such a legislative intention. Without such intention, the court declines to carve out an exception for liability under the TCA for signage in a school zone or to denote signs in a school zone as anything but "ordinary." 

Wednesday, April 19, 2017

KEITH WILLIAMS VS. RAYMOURS FURNITURE CO., INC. A-3450-15T4


KEITH WILLIAMS VS. RAYMOURS FURNITURE CO., INC.
          A-3450-15T4
The Division of Workers' Compensation dismissed the petition of Keith Williams for lack of jurisdiction. The judge of compensation determined that because Williams worked in New York and the accident happened there, there was no reason for New Jersey to assume jurisdiction of Williams' claim. We reverse.
As the facts are undisputed that Williams accepted employment from respondent by telephone from his home in Paterson, thereby establishing New Jersey as the place the contract was created, the law is clear that New Jersey is an appropriate forum for resolution of petitioner's claim petition, certainly in conjunction with his residency here. 

JACLYN THOMPSON VS. BOARD OF TRUSTEES, TEACHERS' PENSION AND ANNUITY FUND A-5028-14T1


JACLYN THOMPSON VS. BOARD OF TRUSTEES, TEACHERS' PENSION AND ANNUITY FUND
A-5028-14T1
Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 34 (2008), held that to obtain accidental disability benefits for a purely mental disability, "[t]he disability must result from direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person." Following the example of Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14 (2011), the Appellate Division holds the Patterson requirement applies to mental disability arising from incidents involving mental and physical stressors if any physical injury was temporary or minor, despite Caminiti v. Bd. of Trs., Police & Firemen's Ret. Sys., 431 N.J. Super. 1 (App. Div. 2013).
The majority rules that the incidents triggering petitioner's mental disability did not meet the Patterson requirement and that her diagnosis of PTSD was not dispositive. Judge Ostrer dissents from that ruling.
The court rules the incidents were undesigned and unexpected given petitioner's lack of training. 

NEW YORK-CONNECTICUT DEVELOPMENT CORP. VS. BLINDS-TO- GO

NEW YORK-CONNECTICUT DEVELOPMENT CORP. VS. BLINDS-TO- GO (U.S.) INC. VS. ANTHONY NARDOZZI, ET AL.
UNIQUE MECHANICAL SERVICES, LLC. VS. NEW YORK- CONNECTICUT DEVELOPMENT CORP.

COUNTY GLASS & METAL INSTALLERS, INC. VS. NEW YORK- CONNECTICUT DEVELOPMENT CORP., ET AL.
A-5660-14T4

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In this matter arising out of the construction of a building, we address whether a verdict can be sustained where the jury found that plaintiff, New York-Connecticut Development Corp. (NYCT), breached the pertinent contract, but nevertheless, awarded it damages under a quantum meruit theory.
Quantum meruit is a form of quasi-contractual recovery and is "wholly unlike an express or implied-in-fact contract in that it is 'imposed by the law for the purpose of bringing about justice without reference to the intention of the parties.'" St. Barnabas Med. Ctr. v. Cnty. of Essex, 111 N.J. 67, 79 (1988)
page2image20576 page2image20736

(citations omitted). It has long been recognized, however, "that the existence of an express contract excludes the awarding of relief regarding the same subject matter based on quantum meruit." Kas Oriental Rugs v. Ellman, 394 N.J. Super. 278, 286 (App. Div. 2007).
Although a party may plead and pursue alternative, and even inconsistent theories, Kas, supra, 394 N.J. Super. at 287, a party is not entitled to recover on inconsistent theories. Ibid. (emphasis added). Once the jury determined that an express contract existed between the parties, it was erroneous for it to be directed to a consideration of quantum meruit. The jury instructions and verdict sheet both misstated the applicable legal principles of contract law. Consequently, we are constrained to reverse and remand for a new trial. 

Sunday, April 9, 2017

STATE OF NEW JERSEY VS. MICHAEL D. MILLER A-0459-15T4


 STATE OF NEW JERSEY VS. MICHAEL D. MILLER 
A-0459-15T4 
Following a bench trial, defendant was convicted of second-degree child endangerment for distributing child pornography, N.J.S.A. 2C:24-4b(5)(a), and fourth-degree child endangerment by possessing child pornography, N.J.S.A. 2C:24-4b(5)(b). In affirming defendant's conviction, we hold that the trial court did not err in allowing a detective, who was not presented as an expert witness, to testify as a fact witness regarding his forensic examination of defendant's computer and defendant's use of peer-to-peer file sharing programs. In any event, any error 
in the admission of the challenged testimony was harmless as the detective possessed sufficient education, training, and experience to qualify as an expert in the field of computer forensics, and defendant was not surprised or prejudiced by the detective's testimony. 

We further hold that, in applying aggravating factor one, N.J.S.A. 2C:44-1(a)(1), the trial court engaged in impermissible double-counting. We also conclude that, under the specific facts presented, defendant's convictions for fourth-degree possession of child pornography and second-degree distribution of child pornography merge. Accordingly, we remand for the court to resentence defendant without consideration of aggravating factor one, and for merger of the two offenses. 

N.E., AS LEGAL GUARDIAN FOR INFANT J.V. VS. STATE OF NEW JERSEY, ET AL. A-3717-13T2

N.E., AS LEGAL GUARDIAN FOR INFANT J.V. VS. STATE OF NEW JERSEY, ET AL. 
A-3717-13T2 
Plaintiff is the legal guardian of a child who was severely and permanently injured by the criminal acts of his biological father. Plaintiff filed a civil action against the Division and a caseworker, and his supervisor claiming it was vicariously liable for the negligent manner these employees investigated plaintiff's allegations of child abuse and parental unfitness. The trial court rejected the Division’s argument that its employees are entitled to immunity from civil liability under the Tort Claims Act. A jury found the Division 100 percent liable and awarded plaintiff a total of $165,972,503. 

In this appeal, this court is required to determine whether the State of New Jersey can be held vicariously liable based on a Division caseworker’s good faith execution of this State’s child protection laws. This court holds the Division caseworkers were entitled to the qualified immunity afforded to public employees who act in good faith in the enforcement or execution of any law under N.J.S.A. 59:3-3 of the Tort Claims Act. An ordinary negligence standard is an insufficient basis to impose civil liability on a public employee involved in the execution of the law. For these reasons, this court reverses the jury's verdict and vacates the final judgment entered against defendants. 

Michael Conley, Jr. v. Mona Guerrero (A-65-15;


 Michael Conley, Jr. v. Mona Guerrero (A-65-15; 076928) 

In this case, because Buyers received actual notice of disapproval within the three-day attorney-review period by a method of communication commonly used in the industry, the notice of disapproval was valid. The Court also exercises its constitutional authority over the practice of law and finds that an attorney’s notice of disapproval of a real estate contract may be transmitted by fax, e-mail, personal delivery, or overnight mail with proof of delivery. Notice by overnight mail will be effective upon mailing. The attorney-review period within which this notice must be sent remains three business days. 

Sunday, April 2, 2017

RICHMOND LAPOLLA VS. COUNTY OF UNION, ET AL. A-2411-14T3

 RICHMOND LAPOLLA VS. COUNTY OF UNION, ET AL. 
A-2411-14T3 

Plaintiff claimed to be the victim of political patronage, suffering adverse employment actions in part because his politically active brother sparred with the chairwoman of the Union County Democratic Party. Plaintiff's appeal from the dismissal of his complaint presents the question whether his familial and social affiliations qualify as constitutionally protected conduct that satisfies an essential element of his claims for violation of the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2, and retaliation. We hold that they do not. 

IN THE MATTER OF JOHN RESTREPO, DEPARTMENT OF CORRECTIONS A-2951-14T4

IN THE MATTER OF JOHN RESTREPO, DEPARTMENT OF CORRECTIONS 
A-2951-14T4 
After an ALJ reduced a corrections officer's disciplinary sanction, the Civil Service Commission (Commission) issued a preliminary decision within forty-five days and obtained two fifteen-day extensions before issuing its final determination reinstating his termination. His appeal raises the issue of whether the timeliness of Commission decisions in disciplinary cases involving law enforcement officers and firefighters is governed by the recent legislation addressing such cases, N.J.S.A. 40A:14-200 to -212 (2009 Act), or by the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15. 

The Appellate Division holds the specific 2009 Act governs the conflicting provisions of the general APA. Under N.J.S.A. 40A:14-204, the Commission's extensions were proper. Its lack of a quorum was an adequate grounds for an extension. Thus, its decision was timely even though its preliminary decision was inadequate. The court upheld the Commission's decision that progressive discipline was not required. 

Motorworld, Inc. v. William Benkendorf, et al. (A-64-15;


 Motorworld, Inc. v. William Benkendorf, et al. 
(A-64-15; 077009) 

The record reveals no reason to abandon the corporate form. By virtue of the Release, Motorworld received no value at all, let alone value commensurate with the loss of its sole asset: a debt in the amount of $600,000 plus accumulating interest and penalties. The disputed transfer was not made for “reasonably equivalent value” under N.J.S.A. 25:2-27(a), and plaintiffs established all elements of a constructively fraudulent transfer. 

Sunday, March 26, 2017

STEVEN CALTABIANO V. GILDA T. GILL A-2805-16T4

STEVEN CALTABIANO V. GILDA T. GILL 
A-2805-16T4 
After the voters of Salem County approved a referendum at the November 2016 General Election, pursuant to N.J.S.A. 40:20-20, to reduce the size of the Freeholder Board from seven to five members, the County Clerk determined that the transition procedure would be to place five new freeholders positions on the 2017 ballot, with those elected to take office on the Monday following that election, at which time the terms of all existing freeholders would terminate. 

A challenge was brought, and the trial court approved the Clerk's determination. We reversed, holding that the transition should be accomplished by placing on the 2017 ballot only one freeholder position. Because the terms of three existing freeholders expire at the end of 2017, the reduction to five members would thus be accomplished without prematurely terminating the terms of any existing freeholders. 

H. JAMES RIPPON VS. LEROY SMIGEL, ESQ., ET AL. A-2722-15T2

H. JAMES RIPPON VS. LEROY SMIGEL, ESQ., ET AL. 
A-2722-15T2 
In this case, a Pennsylvania lawyer and his law firm represented plaintiff's spouse in a highly contentious divorce action in Pennsylvania. During that proceeding, the lawyer sent a letter to a New Jersey bank that plaintiff had contacted about obtaining a mortgage on a house he hoped to purchase in New Jersey. Among other things, the lawyer's letter intimated that plaintiff was improperly using marital funds to purchase the home. After the bank denied plaintiff a mortgage, he filed an action in New Jersey against his spouse, the lawyer, and his firm for defamation and tortious interference with contractual relations. 

The trial court dismissed the New Jersey action, finding that it did not have jurisdiction over the lawyer and the law firm and that the complaint was barred on the basis of forum non conveniens and the doctrine of res judicata. In this opinion, the court remands the matter to the trial court to permit plaintiff to engage in discovery on the questions of jurisdiction and forum non conveniens. The court also concludes that plaintiff's complaint was not barred on res judicata grounds. 

Sunday, March 19, 2017

BRIAN SULLIVAN VS. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, ET AL. A-3506-14T1

BRIAN SULLIVAN VS. THE PORT AUTHORITY OF NEW YORK AND 
NEW JERSEY, ET AL. 
A-3506-14T1 
Plaintiff filed a complaint against the Port Authority of New York and New Jersey and individual Port Authority employees, alleging retaliation and civil conspiracy in violation of the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. We affirmed the trial court's grant of summary judgment based on a finding that the Port Authority is not subject to suit under CEPA. 
The Port Authority is a bi-state agency created by a compact that prohibits unilateral action by one state without express authorization in the compact or the concurrence of the legislature of the other state. The corollary to this proposition is that the Port Authority may be subject to complementary or parallel state legislation. Under the complementary or parallel legislation principle, one compact state's law can be applied to the bi-state agency if it is substantially similar to the legislation of the other state. If there is no complementary legislation, then it must be determined whether the bi-state agency impliedly consented to unilateral state regulation. 

We determined that the compact did not expressly provide for application of CEPA against the Port Authority. We then compared CEPA to the New York Whistleblower Law, N.Y. Lab. Law § 740, and held they were not substantially similar so as to alter the compact. We also held that the clear and unambiguous language in the state legislations creating the Port Authority and the lack of complementary and parallel whistleblower statutes confirmed that New York and New Jersey did not mutually intend to consent to suit against the Port Authority under CEPA. 

Monday, March 13, 2017

175 EXECUTIVE HOUSE, LLC VS. ELESHA MILES A-1604-15T2


175 EXECUTIVE HOUSE, LLC VS. ELESHA MILES
          A-1604-15T2
Although tenant received a rent subsidy voucher under the State's Rental Assistance Program (S-RAP) and timely paid her portion of the monthly rent, the landlord obtained a judgment of possession because she failed to pay late fees, attorney's fees and court costs ("additional rent").
The court vacated the judgment of possession, holding that a tenant with an S-RAP voucher cannot be evicted based solely on the non-payment of additional rent because to do so contravenes applicable regulations. 

GREG NOREN VS. HEARTLAND PAYMENT SYSTEMS, INC. A-2651-13T3


GREG NOREN VS. HEARTLAND PAYMENT SYSTEMS, INC.
          A-2651-13T3
In previously ruling on the merits, the court, among other things, dismissed defendant's cross-appeal from the denial of summary judgment because defendant failed to comply with Rule 2:6-1(a)(1), which requires inclusion in the appendix of all items, and a statement of all items, presented to the trial court on the motion for summary judgment. Noren v. Heartland Payment Sys., Inc., __ N.J. Super. __, __ (App. Div. 2017) (slip op. at 14-15). Defendant moved for reconsideration, arguing that the cited Rule refers only to appeals "from a summary judgment," which, in defendant's view, could only mean an appeal from a grant of summary judgment, not a denial. The court denied the motion and rejected defendant's argument, holding that the Rule's critical phrase "from a summary judgment" incorporates appeals from any disposition of a motion for summary judgment. 

DIANA ACEVEDO AND REX FORNARO VS. FLIGHTSAFETY INTERNATIONAL, INC., ET AL. A-1295-14T2


DIANA ACEVEDO AND REX FORNARO VS. FLIGHTSAFETY
          INTERNATIONAL, INC., ET AL.
A-1295-14T2
A back pay award under the Law Against Discrimination (LAD) is not to be reduced by the amount of unemployment compensation which the plaintiff has received. The collateral source statute, N.J.S.A. 2A:15-97, does not apply to monetary awards under the Law Against Discrimination (LAD). 

GREG AND RENEE MATEJEK VS. MARTHA AND GUY WATSON, ET AL. A-4683-14T1

GREG AND RENEE MATEJEK VS. MARTHA AND GUY WATSON, ET AL.
A-4683-14T1
In this action, one condominium unit owner sued neighboring unit owners, seeking their participation in an investigation of the site for the purpose of removing the cloud on title imposed by the New Jersey Department of Environmental Protection's open file, which was initiated years earlier when oil was found in a nearby brook. At the conclusion of a bench trial, the judge granted the relief sought by plaintiffs, and one of the neighboring owners appealed, arguing the New Jersey Spill Compensation and Control Act limited plaintiffs' private cause of action to a claim for contribution that required proof of defendants' actual discharge of contamination. The court agreed with the trial judge that an equitable remedy was appropriate -- and not precluded by the Spill Act -- and affirmed the judgment that compelled all the impacted property owners to initially share the cost of an investigation, subject to adjustment by later litigation if necessary. 

Tahisha Roach v. BM Motoring, LLC (A-69-15;


Tahisha Roach v. BM Motoring, LLC (A-69-15; 077125)
          Defendants’ non-payment of filing and arbitration fees
          amounted to a material breach of the DRA.   Defendants
          are therefore precluded from enforcing the arbitration
          provision, and the case will proceed in the courts.

Sunday, February 26, 2017

IN THE MATTER OF TANAYA TUKES, ET AL. A-3374-14T3

IN THE MATTER OF TANAYA TUKES, ET AL. 
A-3374-14T3 

In early 2015, the Department of Human Services closed the Woodbridge Developmental Center and privatized the operation of some State-operated group homes. This decision resulted in the need to lay off, demote, or reassign a number of employees. In this appeal, we reviewed the Department's employee layoff plan, which was approved by the Civil Service Commission, and affirmed the Commission's determination that employees in two job titles had lateral title displacement rights relative to each other. 

Wednesday, February 22, 2017

KATHLEEN WOLENS VS. MORGAN STANLEY SMITH BARNEY, LLC, ET AL. A-1028-15T1


 KATHLEEN WOLENS VS. MORGAN STANLEY SMITH BARNEY, LLC, 
ET AL. 
A-1028-15T1 
Plaintiff appeals an order granting summary judgment and dismissing her complaint against her deceased mother's former investment company and its account manager. Plaintiff claims that defendants acted negligently and improperly in carrying out a written request to have her mother's bank accounts changed from accounts solely in her name to joint accounts with one of plaintiff's sisters. 

This court affirms the dismissal. It has not been shown that defendants owed or breached any legal duties to plaintiff, who was neither their customer nor a person known to them with whom they had any established contractual or special relationship. 

LUCIA SERICO, ET AL. VS. ROBERT M. ROTHBERG, M.D. A-1717-15T1


 LUCIA SERICO, ET AL. VS. ROBERT M. ROTHBERG, M.D. 
A-1717-15T1 
In this appeal, we address the viability of a plaintiff's claim for fees under the offer of judgment rule, R. 4:58-1 to -6, after the parties enter into a high-low settlement agreement and the jury returns a verdict in excess of the high. The Law Division denied plaintiff's motion for fees under the Rule because plaintiff and defendant entered into the agreement and plaintiff did not expressly reserve her right to recover fees under the Rule. Based on the court's experience, it found that the "custom and usage" in the practice of law dictated that without evidence of a reservation of rights, a claim under the Rule was waived by entering into a high-low agreement. On appeal, plaintiff contended that although she did not reserve her rights, she did not waive them by entering into the agreement. Defendant argued that plaintiff's failure to reserve her rights gave rise to a waiver or abandonment of any claim she had for attorney's fees and, in any event, as the trial court found, the "custom and usage" practiced in the area provides that such claims are deemed abandoned when a party enters into a high-low agreement. 
We concluded that, while the trial court's reliance on its personal experience was misplaced, it correctly determined that the amount of plaintiff's total recovery from defendant was limited by the ceiling imposed by the high-low agreement because 

plaintiff did not indicate any intention to preserve her claim under the Rule when the parties placed the agreement on the record. 

DUNBAR HOMES, INC. VS. THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF FRANKLIN, ET AL. A-3637-14T1

DUNBAR HOMES, INC. VS. THE ZONING BOARD OF ADJUSTMENT 
OF THE TOWNSHIP OF FRANKLIN, ET AL. 
A-3637-14T1 

We consider what is required for a submission to a municipal agency to constitute an "application for development" that triggers the protection of the "time of application" statute, N.J.S.A. 40:55D-10.5, a matter of first impression. We reject arguments from the Township that the application must be "complete" and from the applicant that a "substantial bona-fide application which does not constitute a sham" is sufficient. We hold that the definition of "application for development" contained in the Municipal Land Use Law, N.J.S.A. 40:55D-3, is a mandatory term and that, pursuant to that definition, a submission must include "the application form and all accompanying documents required by ordinance for approval" for the "time of application" statute to apply. 

RICCI N/K/A MAURA MCGARVEY VS. MICHAEL RICCI AND CAITLYN RICCI A-1832-14T1/A-2409-14T1

RICCI N/K/A MAURA MCGARVEY VS. MICHAEL 
RICCI AND CAITLYN RICCI 
A-1832-14T1/A-2409-14T1 (CONSOLIDATED) 
We reversed Family Part orders requiring divorced parents to pay college tuition costs to their estranged daughter. The child left her mother's home and the parents agreed she was emancipated. Thereafter, the child sought to intervene in the matrimonial action, and the judge concluded the child was "unemancipated" for purpose of college costs, without review of the divergent facts in support of and in opposition to emancipation. He ordered payment of "de minimus" community college costs; a different judge extended this obligation, after a summary proceeding. 

Whether a child is unemancipated is a threshold legal determination to a parent's obligation to pay college costs. The required parent-child relationship is one of interdependence: the child's right to support and the parents' obligation to provide payment are inextricably linked to the child's acceptance and the parents' measured exercise of guidance and influence. A finding of emancipation recognizes a child's independence from a parental influence and eliminates the obligation for support. 

Bound Brook Board of Education v. Glenn Ciripompa (A-57-15; 076905)


Bound Brook Board of Education v. Glenn Ciripompa 
(A-57-15; 076905) 

The arbitrator impermissibly converted the second charge of unbecoming conduct into one of sexual harassment. The re-characterization of Count II erroneously tasked the Board with substantiating charges it did not file with evidence it did not proffer. The arbitrator’s review was not “consonant with the matter submitted,” Grover v. Universal Underwriters Ins. Co., 80 N.J. 221, 231 (1979); rather, he “imperfectly executed his powers” as well as exceeded his authority by failing to decide whether Count II stated a successful claim of unbecoming conduct in support of termination. N.J.S.A. 2A:41-8(d). The arbitrator’s award is therefore invalid. 

Sunday, February 12, 2017

KEAN FEDERATION OF TEACHERS, ET AL. VS. ADA MORELL, ET AL. A-5481-14T3


KEAN FEDERATION OF TEACHERS, ET AL. VS. ADA MORELL, ET AL.
A-5481-14T3
In this action in lieu of prerogative writs, plaintiffs alleged the Board of Trustees of Kean University violated the Open Public Meetings Act (OPMA) by delaying ninety-four days and fifty-eight days before releasing the minutes of two Board meetings. On cross-motions for summary judgment, the trial court found the Board violated the "promptly available" standard under N.J.S.A. 10:4-14 of the OPMA. This court affirms. The trial court issued a permanent injunction directing the University to release the Board minutes within forty-five days of each future meeting. This court vacates the injunction, but orders the Board to adopt a meeting schedule for academic year 2017-2018 that will enable it to make its meeting minutes available to the public within thirty to forty-five days, absent extraordinary circumstances.
In Rice v. Union Cty. Reg'l High Sch. Bd. of Educ., 155 N.J. Super. 64, 73 (App. Div. 1977), this court held public bodies were required to send affected employees reasonable advance notice to enable them to (1) make a decision on whether they desire a public discussion; and (2) prepare and present an appropriate request in writing. Here, the trial court ruled that absent any discussion of the employees' status during closed session, or any stated intention to engage in such discussion, the Board is not required to send a Rice notice to the affected employees.
This court now reverses and holds a public body is required to send a Rice notice to all affected employees any time it places on its agenda its intention to take action affecting these employees' employment status. The notice requirement in Rice is predicated on the presumption that members of public bodies will discuss personnel matters and deliberate before reaching an ultimate decision. Not sending a Rice notice stifles the Board's deliberative process, inhibits the robust discussion by individual Board members that the Supreme Court endorsed in S. Jersey Pub. Co. v. N.J. Expressway, 124 N.J. 478, 493 (1991), and creates the impression the Board has colluded to violate the OPMA. As authorized under N.J.S.A. 10:4-16, this court declares the actions concerning personnel matters taken by the Board of Trustees of Kean University at its December 6, 2014 meeting null and void. 

JANELLE BRUGALETTA VS. CALIXTO GARCIA, D.O., ET AL. A-4342-15T1


JANELLE BRUGALETTA VS. CALIXTO GARCIA, D.O., ET AL.
          A-4342-15T1
In this interlocutory appeal, the court reverses the trial court's order piercing the self-critical analysis privilege under the Patient Safety Act, N.J.S.A. 26:2H-12.25(g). The trial court pierced the privilege because defendant hospital failed to report to plaintiff or the Department of Health that plaintiff suffered a "serious preventable adverse event" (SPAE), see N.J.S.A. 26:2H-12.25(a) as the Act required. See N.J.S.A. 26:2H-12.25(c), -12.25(d). In reversing, the appellate panel holds that the self-critical analysis privilege is conditioned solely on compliance with statutory and regulatory mandates governing formation of a patient safety plan and related procedural requirements. N.J.S.A. 26:2H-12.25(g). Furthermore, there was insufficient evidence of causation to support the trial court's finding of a SPAE. Specifically missing was expert evidence that any serious adverse event occurred "because of an error or other system failure." N.J.S.A. 26:2H-12.25(a). 

GREG NOREN VS. HEARTLAND PAYMENT SYSTEMS, INC. A-2651-13T3


GREG NOREN VS. HEARTLAND PAYMENT SYSTEMS, INC.
          A-2651-13T3
In this appeal, plaintiff conceded a jury-waiver provision in his employment contract applied to his breach of contract claim against his employer but argued it did not apply to his claim that defendant violated the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19 to -14. The provision in the employment contract stated the parties "irrevocably waive any right to trial by jury in any suit, action or proceeding under, in connection with or to enforce this Agreement." There was no reference to statutorily conferred rights or to causes of action arising from plaintiff's employment. We conclude the jury-waiver provision failed to clearly and unambiguously explain the right to a jury trial was waived as to a CEPA claim and remand for a jury trial on that issue. We further vacate the counsel fee award to defendant of over $2 million and remand to the trial court to determine what portion of the award is warranted for the defense against the breach of contract claims. 

Sunday, February 5, 2017

Givaudan Fragrances Corporation v. Aetna Casualty & Surety Compan

Givaudan Fragrances Corporation v. Aetna Casualty & 
Surety Company 
(A-16/17/18/19/20/21/22/23/24/25-15; 076523) 

The Court adopts the policy that, once an insured loss has occurred, an anti-assignment clause in an occurrence policy may not provide a basis for an insurer’s declination of coverage based on the insured’s assignment of the right to invoke policy coverage for that loss. The assignment at issue in this case was a post-loss claim assignment and therefore the rule voiding application of anti-assignment clauses to such assignments applies. 

Sunday, January 29, 2017

HARRY SCHEELER VS. OFFICE OF THE GOVERNOR, ANDREW J. MCNALLY, ET AL./ HEATHER GREICO VS. NEW JERSEY DEPARTMENT OF EDUCATION, ET AL./ JOHN PAFF VS. NEW JERSEY MOTOR VEHICLE COMMISSION, ET AL. A-1236-14T3/


 HARRY SCHEELER VS. OFFICE OF THE GOVERNOR, ANDREW J. 
MCNALLY, ET AL./ HEATHER GREICO VS. NEW JERSEY DEPARTMENT OF EDUCATION, ET AL./ JOHN PAFF VS. NEW JERSEY MOTOR VEHICLE COMMISSION, ET AL. 
A-1236-14T3/A-3170-14T4/A-3335-14T3(CONSOLIDATED) 

The Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, does not permit government agencies to deny a citizen access to all requests for public records by third-parties, and Gannett N.J. Partners, LP v. County of Middlesex, 379 N.J. Super. 205 (App. Div. 2005), does not provide authority for the blanket denial of access to all third-party OPRA requests. 

IN THE MATTER OF THE ESTATE OF ARTHUR E. BROWN A-1086-14T4

 IN THE MATTER OF THE ESTATE OF ARTHUR E. BROWN 
A-1086-14T4 
In this appeal, the decedent was institutionalized in a nursing home, suffering from Alzheimer's disease. His wife, who predeceased him, had disinherited him, and he did not claim his one-third elective share of her augmented estate pursuant to N.J.S.A. 3B:8-1. We affirmed the trial court's denial of entry of judgment discharging a priority lien the Division of Medical Assistance and Health Services filed against the decedent's estate pursuant to N.J.S.A. 30:4D-7.8 for reimbursement of Medicaid benefits the decedent received during his lifetime. We also affirmed the court's calculation of the decedent's elective share. 
We determined that the decedent was entitled to an elective share of his deceased wife's augmented estate that included the proceeds from the sale of the couple's former marital home, which had been transferred to the wife as sole owner prior to the decedent's admission into the nursing home. We rejected appellant's argument that N.J.S.A. 3B:8-1 did not apply to the decedent because he and his wife had been living separate and apart at the time of her death, and the couple ceased to cohabit as man and wife under circumstances that gave the wife a cause of action for divorce under N.J.S.A. 2A:34-2(d) or (f). We also rejected appellant's argument that the decedent's estate had no right to an elective share because that right was personal to him and could only be exercised during his lifetime as per N.J.S.A. 3B:8-11. 
We rejected appellant's alternative argument that the decedent's elective share was zero because the proceeds from the 

sale of the former marital home were excluded from the wife's augmented estate under N.J.S.A. 3B:8-5. Lastly, we rejected appellant's argument that the value of some of the decedent's assets should be deducted from his elective share. 

Sunday, January 22, 2017

LINDA TISBY VS. CAMDEN COUNTY CORRECTIONAL FACILITY/ LINDA TISBY VS. CAMDEN COUNTY, ET AL. A-0326-15T3/

LINDA TISBY VS. CAMDEN COUNTY CORRECTIONAL FACILITY/ LINDA TISBY VS. CAMDEN COUNTY, ET AL. 
A-0326-15T3/A-0344-15T3(CONSOLIDATED) 
In this case, we affirm the dismissal of two complaints filed by a Camden County Corrections Officer who was removed from her position because she wore a khimar with her work uniform, consistent with the practice of her faith. Based on the reasoning of the trial judges, we find an accommodation would impose an undue hardship on defendants based upon safety and security concerns, and the second dismissal was appropriate based upon the entire controversy doctrine. 
Plaintiff filed her complaint alleging violations under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, asserting defendant's failure to accommodate sincere religious beliefs, and a complaint in lieu of prerogative writ seeking reinstatement and back pay. After considering arguments, the trial judge recognized plaintiff's sincerely held religious belief, but dismissed the complaint, determining an accommodation would impose an undue hardship on defendants because of overriding safety and security concerns of the prison and the importance of uniform consistency and neutrality. 
A different judge dismissed the second prerogative writ complaint, citing the entire controversy doctrine because plaintiff's complaints were only slightly distinguishable and should have been heard as one action. 

Reviewing federal authority touching on this issue, we conclude summary judgment dismissal was correctly entered. Any "inference of discrimination" based on the rejection of the accommodation request grounded on plaintiff's sincerely held religious beliefs was soundly rebutted by the employer's evidence of risks to safety, security and maintaining orderly objective operations in the prison. Further, plaintiff offered no proof of pretext. See Zive v. Stanley Roberts, Inc.; 182 N.J. 436, 447 (2005) (adopting burden shifting test set forth in McDonnell Douglass Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)). 

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. S.W. AND R.W. IN THE MATTER OF AL.W, AN.W., M.W. AND N.W. A-4020-14T4

NEW JERSEY DIVISION OF CHILD PROTECTION AND 
PERMANENCY VS. S.W. AND R.W. 
IN THE MATTER OF AL.W, AN.W., M.W. AND N.W. 
A-4020-14T4 
In this Title Nine matter, the date of defendant's fact-finding hearing was advanced from September 12 to September 11, 2013. There is no indication that defendant was advised of the date change and he did not appear for the hearing. Defendant's counsel agreed to proceed with a fact-finding hearing "on the papers." Based solely on documents submitted by the Division, the judge found defendant abused or neglected his four children when he relapsed and used cocaine after his arrest for failure to pay child support for the four children who were in his custody. 
After defendant's arrest, the children were cared for by their older siblings and then taken to their mother's house. The children were not harmed and there was no proof that defendant's use of cocaine exposed any of the children to imminent danger or a substantial risk of harm. 
There was also no evidence that defendant knowingly waived his right to a fact-finding hearing and agreed to have the judge decide whether he abused or neglected his children solely based on her review of reports prepared by Division caseworkers. Because statutory and constitutional rights are impacted when a defendant waives the right to testify on his own behalf, to call witnesses, to cross-examine witnesses who testify against him, and to have a judge make credibility determinations, there is no reason why the protections afforded to defendants entering stipulations of abuse or neglect announced in Div. of Youth & Family Servs. v. M.D., 417 N.J. Super. 583, 617-18 (App. Div. 2011), should not be required when a defendant waives the right to a fact-finding hearing. 

Even where a defendant makes a knowing waiver and agrees to a determination on the papers, the judge must reject the abbreviated procedure and proceed with a testimonial hearing if the record contains conflicting facts critical to the determination. 

DOMINIC ANDALORA, ET AL. VS. R.D. MECHANICAL CORP., ET AL. VS. SWIFT CONSTRUCTION, LLC A-3724-14T4

DOMINIC ANDALORA, ET AL. VS. R.D. MECHANICAL 
CORP., ET AL. VS. SWIFT CONSTRUCTION, LLC 
A-3724-14T4 
This case addresses a series of procedural errors in the handling of insurance coverage issues relating to a construction accident lawsuit. Once the injury lawsuit was settled, the general contractor's (gc's) insurer, which had contributed to the settlement under protest, was the real party in interest 

with respect to an action seeking reimbursement of its contribution from the subcontractor's insurer. The trial court erred in dismissing, with prejudice, the gc's contractual indemnification lawsuit against the subcontractor. Thereafter, the gc's insurer sued the subcontractor in its own name. On this appeal, the appropriate remedy was to amend the order on appeal to a without-prejudice dismissal, and permit the insurer to pursue its own complaint as subrogee. 

In re the Declaratory Judgment Actions Filed by Various Municipalities, County of Ocean, Pursuant to the Supreme Court’s Decision in In re Adoption of N.J.A.C. 5:96, 221 N.J. 1 (2015) (A-1-16;

In re the Declaratory Judgment Actions Filed by Various Municipalities, County of Ocean, Pursuant to the Supreme Court’s Decision in In re Adoption of N.J.A.C. 5:96, 221 N.J. 1 (2015) (A-1-16; 077565) 

Towns are constitutionally obligated to provide a realistic opportunity for their fair share of affordable housing for low- and moderate-income households formed during the gap period and presently existing in New Jersey. A form of present-need analysis under the Fair Housing Act—redefined to include a component premised on a calculation of those low- and moderate-income New Jersey households, newly formed since 1999, that presently exist and are entitled to their opportunity of access to affordable housing—provides the appropriate approach to addressing statewide and regional need. The modification of the previous definition of a present-need analysis is essential in order to address the failure of COAH to perform its required mission, in connection with a constitutional obligation, for a period of time affecting almost a generation of New Jersey citizens. 

Brian Royster v. New Jersey State Police (A-1-15;


 Brian Royster v. New Jersey State Police 
(A-1-15; 075926) 
The Court agrees with the Appellate Division that sovereign immunity precludes Royster’s ADA claim. The NJSP’s litigation conduct did not amount to a waiver of immunity, nor is the NJSP estopped from asserting the 

defense of sovereign immunity against Royster’s ADA claim. However, the interests of justice require reinstatement of Royster’s LAD failure-to-accommodate claim. The Court reinstates the LAD claim and remands to the trial court to mold the jury’s verdict and enter judgment on Royster’s LAD claim in favor of Royster and against the NJSP in the amount of $500,000.