Kenneth Mr. Vercammen was included in the 2017 “Super Lawyers” list published by Thomson Reuters.

To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or visit www.njlaws.com

(732) 572-0500

Monday, October 23, 2017

DCPP VS. P.D. AND A.W. IN THE MATTER OF THE GUARDIANSHIP OF S.D. A-5437-14T4

DCPP VS. P.D. AND A.W. 
IN THE MATTER OF THE GUARDIANSHIP OF S.D. 
A-5437-14T4 

In this appeal, we hold: (1) the Division of Child Protection and Permanency (Division) established all of the criteria for termination of parental rights in N.J.A.C. 30:4C-15.1(a), where defendant father essentially abandoned the child to the care of others, was deported and failed to maintain contact with the child for several years, the child formed a bond with her foster parent, and the Division's expert testified that the child would suffer severe and enduring harm if removed from the foster home, which defendant could not ameliorate; (2) the Vienna Convention of Consular Relations, April 23, 1963, 21 U.S.T. 77, did not require consular notice in this matter or the prior child protection proceedings because the child was a citizen of the United States; and (3) defendant father failed to establish that he was denied the effective assistance of counsel in the guardianship action. 

ROBERT MELLET ET AL. VS. AQUASID, LLC ET AL. A-4438-15T1 (NEWLY PUBLISHED OPINION FOR OCT. 16, 2017)

ROBERT MELLET ET AL. VS. AQUASID, LLC ET AL. 
A-4438-15T1 (NEWLY PUBLISHED OPINION FOR OCT. 16, 2017) 
Plaintiffs entered into health club contracts, which charged various forms of fees including late fees, collection administrative fees, in addition to dues. Plaintiffs filed suit asserting the form of their membership contracts and the fees defendant charged violated RISA, the Consumer Fraud Act (CFA), the Health Club Services Act (HCSA), and the Truth in Consumer Contract, Warranty, and Notice Act (TCCWNA). Plaintiffs sought class certification for all persons who entered into a membership agreement with defendant. Plaintiffs were denied class 
certification and defendant was granted summary judgment dismissing plaintiffs' complaint. 

The Retail Installment Service Act (RISA), N.J.S.A. 17:16C-1(b) to -50, is a remedial act regulating charges associated with contracts entered into in New Jersey between a retail seller and a retail buyer evidencing an agreement to pay the retail purchase price of goods or services, which are primarily for personal, family or household purposes, or any part thereof, in two or more installments over a period of time. RISA applies to security agreements, chattel mortgages, conditional sales contracts, or other similar instruments, and any contract for the bailment or leasing of goods. RISA is to be construed liberally in favor of the consumer. Notwithstanding, the panel concluded health club contracts are not covered by RISA because they do not fall within the definition of "other similar instruments" of the sort contemplated by the statute. 

L.R., ETC. VS. CAMDEN CITY PUBLIC SCHOOL DISTRICT, ET AL./ L.R., ETC. VS. PARSIPPANY-TROY HILLS TOWNSHIP PUBLIC SCHOOL DISTRICT, ET AL./ THE INNISFREE FOUNDATION VS. HILLSBOROUGH TOWNSHIP BOARD OF EDUCATION, ET AL./ THE INNISFREE FOUNDATION VS. CHERRY HILL BOARD OF EDUCATION, ET AL. A-3972-14T4/

L.R., ETC. VS. CAMDEN CITY PUBLIC SCHOOL DISTRICT, ET AL./ L.R., ETC. VS. PARSIPPANY-TROY HILLS TOWNSHIP PUBLIC SCHOOL DISTRICT, ET AL./ THE INNISFREE FOUNDATION VS. HILLSBOROUGH TOWNSHIP BOARD OF EDUCATION, ET AL./ THE INNISFREE FOUNDATION VS. CHERRY HILL BOARD OF EDUCATION, ET AL. 
A-3972-14T4/A-4214-14T4/A-2387-15T4/A-3066-15T4(CONSOLIDATED) 
These four related appeals from three vicinages concern efforts by plaintiffs (a nonprofit advocacy organization for disabled students, and the mother of a disabled student in the Camden City Public Schools) to obtain from several school districts copies of settlement agreements and records reflecting the provision of special services to other qualified students. The respective school districts resisted disclosure, citing statutory and regulatory provisions that generally safeguard the privacy of students in their records. The four cases generated conflicting decisions in the Law Division. 
Plaintiffs' requests for records raise several novel issues of access under the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -13, the New Jersey Pupil Records Act ("NJPRA"), N.J.S.A. 18A:36-19, and the Federal Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. § 1232g. The requests also implicate administrative regulations adopted under both the NJPRA and FERPA. 
The panel holds that the respective plaintiffs in the Hillsborough, Parsippany-Troy Hills, and Cherry Hill cases are entitled to appropriately-redacted copies of the requested records, provided that on remand those plaintiffs either: (1) establish they have the status of "bona fide researchers" within the intended scope of N.J.A.C. 6A:32-7.5(e)(16); or (2) obtain from the Law Division a court order authorizing such access pursuant to N.J.A.C. 6A:32-7.5(e)(15). The school districts shall not turn over the redacted records until they first provide reasonable advance notice to the affected student's parents or guardians. 

We remand the Camden City case for further proceedings with respect to requested documents that also could refer to other students, but affirm the trial court's grant of access concerning records that exclusively mention the requestor's child. 

Sunday, October 15, 2017

AIR MASTER & COOLING, INC. VS. SELECTIVE INSURANCE COMPANY OF AMERICA, ET AL. A-5415-15T3


 AIR MASTER & COOLING, INC. VS. SELECTIVE INSURANCE COMPANY OF AMERICA, ET AL. 
A-5415-15T3 
In this declaratory judgment action, the court addresses legal issues of property damage coverage under a Commercial General Liability ("CGL") insurance policy. The coverage issues stem from lawsuits brought by a condominium association and unit owners to remediate construction defects within a residential building. The insured, an HVAC subcontractor, worked on the roof and elsewhere in the building. The defects concern the progressive infiltration of water within the building. 
After the contractor was named as a third-party defendant in the underlying construction defect cases, it sought a defense and indemnity from the insurers that had issued CGL policies to it over successive policy periods. The trial court granted summary judgment to Selective, one of those insurers, finding that the property damage had already manifested before its policy period commenced. 
In reversing summary judgment and remanding for further development of the record, the panel held: (1) a "continuous trigger" theory may be applied to third-party liability claims involving progressive damage to property caused by an insured's allegedly defective construction work; and (2) the "last pull" of that trigger occurs when the essential nature and scope of the property damage first becomes known, or when one would have sufficient reason to know of it. 

The panel rejected the subcontractor's novel argument that the last pull of the trigger does not occur until there is proof that "attributes" the property damage to faulty conduct by the insured. 

Sunday, October 8, 2017

Debra Dugan v. TGI Friday’s, Inc. (A-92-15; 077567)

Debra Dugan v. TGI Friday’s, Inc. (A-92-15; 077567) 
Ernest Bozzi v. OSI Restaurant Partners, LLC 
(A-93-15; 077556) 

Because CFA class action jurisprudence rejects “price-inflation” theories, such as the theory presented by the Dugan plaintiffs, as incompatible with the CFA’s terms, the Dugan plaintiffs have not established predominance with respect to their CFA claims. Bozzi’s allegations focus primarily on a specific pricing practice. If the Bozzi class is redefined to include only customers who make that specific CFA claim, and the claim is limited accordingly, plaintiff Bozzi has met the requirements of Rule 4:32-1 and may attempt to prove that claim on behalf of the class. As to the TCCWNA claims in both appeals, plaintiffs have failed to satisfy the predominance requirement of Rule 4:32-1. 

Tuesday, September 26, 2017

BBB VALUE SERVICES, INC. VS. TREASURER, STATE OF NEW NEW JERSEY, DEPARTMENT OF THE TREASURY, ETC. A-2973-14T3/


BBB VALUE SERVICES, INC. VS. TREASURER, STATE OF NEW
          NEW JERSEY, DEPARTMENT OF THE TREASURY, ETC.
          A-2973-14T3/A-4880-14T3
In these back-to-back appeals, Bed Bath & Beyond, Inc. (BB&B) and its subsidiary BBB-VSI appeal the denial by the Treasury Department's Unclaimed Property Administration (UPA) of their claim for a refund of the value of certain unclaimed merchandise return certificates. These certificates were provided by BB&B and BBB-VSI to customers who returned merchandise without a receipt. They could only be redeemed for other merchandise or services, and not for cash. The court concludes that for BB&B certificates issued between July 1, 1999 to June 30, 2010, the unused balances of these certificates should have been refunded by the UPA because they were not "property" within the scope of New Jersey's Uniform Unclaimed Property Act, N.J.S.A. 46:30B-1 to -109 (UUPA). UPA's denial of a refund is reversed. For certificates issued by BBB- VSI from July 1, 2010 to June 30, 2011, the certificates are not "credit memoranda" but rather constitute "stored-value cards" under the plain language of the UUPA as it was amended in 2010. The UPA erred in not refunding the value of these certificates because they were prematurely remitted by BBB-VSI. 

Sunday, September 17, 2017

JEFFREY SAUTER VS. COLTS NECK VOLUNTEER FIRE COMPANY NO. 2 A-0354-15T1


 JEFFREY SAUTER VS. COLTS NECK VOLUNTEER FIRE COMPANY NO. 2 
A-0354-15T1 

The court affirms the dismissal on summary judgment of a volunteer firefighter's whistleblower claim against Colts Neck Volunteer Fire Company No. 2, and several individual officers and members of the fire company, finding volunteer firefighters are not entitled to the protections of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Because plaintiff is not an employee of the fire company, its vote to strip him of his membership in the organization in alleged retaliation for his letters to the fire company's fidelity carrier and Colts Neck's Executive Fire Council, even if true, is not a violation of CEPA. 

The Palisades at Fort Lee Condominium Association, Inc. v. 100 Old Palisades, LLC (A-101/102/


 The Palisades at Fort Lee Condominium Association, 
Inc. v. 100 Old Palisades, LLC 
(A-101/102/103/104-15; 077249) 

A construction-defect cause of action accrues at the time that the building's original or subsequent owners first knew or, through the exercise of reasonable diligence, should have known of the basis for a claim. From that point, the plaintiff has six years to file a claim. A subsequent owner stands in no better position than a prior owner in calculating the limitations period. If a prior owner knew or reasonably should have known of a basis for a construction-defect action, the limitations period began at that point. Here, the Court cannot determine when the accrual clock commenced for each defendant based on the record before it and accordingly remands to the trial court. 

Sunday, September 10, 2017

NEW JERSEY ELECTION LAW ENFORCEMENT COMMISSION VS. JOSEPH DIVINCENZO AND JORGE MARTINEZ A-4131-15T3


 NEW JERSEY ELECTION LAW ENFORCEMENT COMMISSION VS. 
JOSEPH DIVINCENZO AND JORGE MARTINEZ 
A-4131-15T3 

The New Jersey Election Law Enforcement Commission (ELEC) appeals from an initial decision by an Administrative Law Judge (ALJ) that it lacked jurisdiction to issue a complaint. The initial decision was deemed adopted pursuant to N.J.S.A. 52:14B-10(c) at a time when the Commission lacked a sufficient number of members to act due to longstanding vacancies. The resulting question of first impression implicates the primacy of an administrative agency's decisional authority, the exclusive jurisdiction of this court to review agency action, and the interpretation of the deemed-adopted provision as applied to the circumstances here. An ALJ lacks any independent decisional authority and may not encroach upon the ultimate decisional authority of the agency. Interpreting the deemed-adopted provision under the circumstances here and in light of the constitutional mandate for appellate review of administrative agency action, we will not infer a legislative intent to foreclose review. Finally, we conclude that the common law quorum requirement applies to the Commission's issuance of a complaint and reverse the ALJ's decision. 

Monday, September 4, 2017

PATRICIA J. MCCLAIN VS. BOARD OF REVIEW, ET AL. A-4319-15T3

PATRICIA J. MCCLAIN VS. BOARD OF REVIEW, ET AL. 
A-4319-15T3 
Appellant left one job upon another's promise of employment. The new employer, however, rescinded the offer the day after appellant voluntarily quit the first job. The Board of Review affirmed the denial of appellant's application for unemployment benefits based on its interpretation of a 2015 amendment to N.J.S.A. 43:21-5(a), which exempts from disqualification "an individual who voluntarily leaves work with one employer to accept from another employer employment which commences not more than seven days after the individual leaves . . . the first employer." The Board determined that because appellant did not commence employment with the new employer, she was not entitled to the statutory exemption from disqualification. The court rejects the Board's interpretation of N.J.S.A. 43:21-5(a) and finds the exemption from disqualification does not require that the claimant actually commence employment with the new employer. 


Wednesday, August 30, 2017

Cell phone penalties



3rd Cell phone use includes possible 90-day loss of license fines for talking or texting on a hand-held wireless communications device were increased. More details at http://www.njlaws.com/39_4-97_3cellph... 39:4-97.3 d. A person who violates this section shall be fined as follows: (1) for a first offense, not less than $200 or more than $400 plus court costs and possible court appearance; (2) for a second offense, not less than $400 or more than $600 plus court costs; and (3) for a third or subsequent offense, not less than $600 or more than $800 plus court costs . For a third or subsequent violation, the court, in its discretion, may order the person to forfeit the right to operate a motor vehicle over the highways of this State for a period of 90 days. In addition, a person convicted of a third or subsequent violation shall be assessed three motor vehicle penalty points pursuant to section 1 of P.L.1982, c.43 (C.39:5-30.5).

CONSENT TO ENTER JUDGMENT with deadbeat tenants


Clause to add All payments made during the term of this agreement shall be applied first to the rents that become due after today, and then they shall be applied to pay the balance of the arrears stated in paragraph 1. If the Tenant makes all payments required in paragraph 2b of this agreement, the Landlord agrees not to request a warrant of removal. If the Tenant does not make all payments required in paragraph 2b of this agreement, the Tenant agrees that the Landlord, with notice to the tenant, may file a certification stating when and what the breach was and that a warrant of removal may then be issued by the clerk. THIS MEANS THAT IF THE TENANT FAILS TO MAKE ANY PAYMENT THAT IS REQUIRED IN PARAGRAPH 2b OF THIS AGREEMENT, THE TENANT MAY BE EVICTED AS PERMITTED BY LAW AFTER THE SERVICE OF THE WARRANT OF REMOVAL. KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW More info at http://www.njlaws.com/landlords-eviciting_tenants_for_nonpayment.html

Sunday, August 27, 2017

MONTCLAIR STATE UNIVERSITY VS. COUNTY OF PASSAIC, ET AL. A-3318-15T3


 MONTCLAIR STATE UNIVERSITY VS. COUNTY OF PASSAIC, ET AL. 
A-3318-15T3 

In Rutgers v. Piluso, 60 N.J. 142 (1972), the Supreme Court addressed the limits of a local government's authority to regulate on-site construction on a state university's property that was confined to its campus. In this dispute, the court was asked to determine whether those limits apply to a state university's construction of a roadway that intersects with an off-site local road. The court held that the state university was not required to obtain local land use approval for the project because the limits imposed by Rutgers applied equally to the proposed development in this case. 

PAUL KAMIENSKI VS. STATE OF NEW JERSEY, DEPARTMENT OF TREASURY A-4816-14T2


 PAUL KAMIENSKI VS. STATE OF NEW JERSEY, DEPARTMENT 
OF TREASURY 
A-4816-14T2 
This case presents us with questions of first impression regarding the interpretation of provisions of the Mistaken Imprisonment Act (Act), N.J.S.A. 52:4C-1 to -7, relating to eligibility, the burden of proof, damages and "reasonable attorney fees." 
Plaintiff was convicted of two counts of purposeful murder and felony murder and drug conspiracy charges. His murder convictions were vacated after the Court of Appeals for the Third Circuit directed that a writ of habeas corpus be issued. His drug conspiracy conviction remained undisturbed. Released after serving more than twenty years in prison, he brought this action under the Act, seeking more than $6,000,000 in damages and $1 million in attorney's fees. After granting summary judgment to plaintiff, the trial court awarded him a judgment of $433,230. We reverse the grant of summary judgment, concluding the federal decision granting plaintiff's habeas corpus petition did not satisfy his burden to establish by clear and convincing evidence "he did not commit the crime for which he was convicted," N.J.S.A. 52:4C-3(b), as a matter of law. We also conclude plaintiff's drug conspiracy conviction does not render him ineligible under N.J.S.A. 52:4C-6. Because a remand is necessary, we also provide guidance to the trial court regarding how damages should be calculated under the Act prior to its 2013 amendment and by concluding the "reasonable attorneys fee" 

recoverable under N.J.S.A. 52:4C-5(b) is limited to fees incurred in the civil litigation under the Act. 

E.S. VS. H.A. A-3230-14T2/

E.S. VS. H.A. 
A-3230-14T2/A-3256-14T2(CONSOLIDATED) 
The parties' final judgment of divorce left undecided issues of custody and parenting time regarding their four-year old son. DYFS subsequently substantiated defendant-father for child abuse. The Family Part judge concluded that finding was not conclusive for purposes of determining whether parenting time with defendant was in the child's best interest, and, so, he held a plenary trial to determine whether defendant had sexually abused his son and whether and under what circumstances defendant could exercise parenting time. 
Following months of testimony, the judge concluded by clear and convincing evidence defendant had abused the child, awarded custody to plaintiff-mother and denied defendant any parenting time. Accepting the testimony of the court's expert psychologist, the judge conditioned any future application for parenting time upon defendant's admission of "wrongdoing," a psycho-sexual evaluation and completion of individual therapy. 
The court concluded conditioning any future application for parenting time upon an admission of wrongdoing violated defendant's right against self-incrimination. Additionally, 

reiterating the holding in Parish v. Parish, 412 N.J. Super. 39 (App. Div. 2010), the court concluded it was error to restrict defendant's access to the court unless he met these conditions beforehand. 

Tuesday, August 15, 2017

NANCY G. SLUTSKY VS. KENNETH J. SLUTSKY A-5829-13T1


NANCY G. SLUTSKY VS. KENNETH J. SLUTSKY
          A-5829-13T1/A-2813-14T1(CONSOLIDATED)
Among the issues discussed in these appeals from a final judgment of divorce, are two of note. First, the court reversed the trial judge's conclusion fixing the value of defendant's interest in his law firm as including goodwill, because the trial judge's limited findings were unsupported and failed to properly analyze the methodology set forth in Dugan v. Dugan, 92 N.J. 423 (1983), and Stern v. Stern, 66 N.J. 340 (1975). The court highlighted the starting point of the analysis must be review of a shareholder's agreement fixing the interest of an equity partner to discern whether it properly captured goodwill. Second, the court reversed a fee award to the payee because it failed to account for the ordered financial obligations imposed upon the payor by the final judgment, and because following fee arbitration, the stipulated fees now due to counsel were less than the sum the payee was ordered to contribute. 

Jaime Taormina Bisbing v. Glenn R. Bisbing, III (A-2-16


Jaime Taormina Bisbing v. Glenn R. Bisbing, III
          (A-2-16; 077533)
          The Court recognizes a “special justification” to
          abandon the standard it established in Baures v.
          Lewis, 167 N.J. 91 (2001) for determining the outcome
          of contested relocation determinations pursuant to
          N.J.S.A. 9:2-2.  In place of the Baures standard,
          courts should conduct a best interests analysis to
          determine “cause” under N.J.S.A. 9:2-2 in all
          contested relocation disputes in which the parents
          share legal custody.

Robert A. Verry v. Franklin Fire District No. 1 (Somerset) (A-77-15


Robert A. Verry v. Franklin Fire District No. 1
          (Somerset) (A-77-15; 077495)
          The fire district, to which the OPRA request was made,
          is obliged to release such documents in its possession
          or to obtain them from a member volunteer fire company
          under its supervision and release them.  OPRA demands
          such transparency and accountability of public agencies,
          and the fire district is undoubtedly a public agency
          subject to OPRA.  The Court therefore affirms the
          judgment in that respect.  However, to the extent the
          holding under review also concluded that the member
          volunteer fire company is a “public agency” subject
          directly and independently to OPRA requirements, the
          Court disagrees and modifies the judgment.

In the Matter of the New Jersey State Fireman’s Association Obligation to Provide Relief Applications Under the Open Public Records Act (A-68-15


In the Matter of the New Jersey State Fireman’s
          Association Obligation to Provide Relief Applications
          Under the Open Public Records Act (A-68-15; 077097)
          OPRA does not, in all instances, prohibit a public
          entity from instituting proceedings under the
          Declaratory Judgment Act to determine whether records
          are subject to disclosure.  After carefully balancing
          the public’s interest in accessing information against
          the private interest in confidentiality, the Court
          finds that the relief checks to Doe are exempt from
          disclosure under OPRA and the common law right of
          access.

Sunday, August 6, 2017

NORTH JERSEY MEDIA GROUP INC., D/B/A THE RECORD VS. STATE OF NEW JERSEY OFFICE OF THE GOVERNOR, ET AL. A-3947-14T3/A

 NORTH JERSEY MEDIA GROUP INC., D/B/A THE RECORD VS. 
STATE OF NEW JERSEY OFFICE OF THE GOVERNOR, ET AL. 
A-3947-14T3/A-3948-14T3(CONSOLIDATED) 

In this OPRA action, plaintiff appealed the trial court's denial of an order in aid of litigant's rights and the denial of the imposition of a civil penalty, finding N.J.S.A. 47:1A-11 authorizes only the Government Records Council to impose a penalty. The court reversed, holding that N.J.S.A. 47:1A-11 authorizes the Superior Court, and not just the Government Records Council, to impose a civil penalty where it is determined there is a knowing and willful violation of OPRA and access to government records has been unreasonably denied under the circumstance. The court also reversed the denial of plaintiff's request for relief under Rule 1:10-3 because the affidavit describing the search for records in response to the second set of requests violated the case management order, was not based on personal knowledge and could not properly support the court's determination that defendant's search was reasonable. 

In the Matter of the New Jersey State Fireman’s Association Obligation to Provide Relief Applications Under the Open Public Records Act (A-68-15

 In the Matter of the New Jersey State Fireman’s 
Association Obligation to Provide Relief Applications 
Under the Open Public Records Act (A-68-15; 077097) 

OPRA does not, in all instances, prohibit a public entity from instituting proceedings under the Declaratory Judgment Act to determine whether records are subject to disclosure. After carefully balancing the public’s interest in accessing information against the private interest in confidentiality, the Court finds that the relief checks to Doe are exempt from disclosure under OPRA and the common law right of access. 

In the Matter of County of Atlantic; In the Matter of Township of Bridgewater (A-98/99/100-15

 In the Matter of County of Atlantic; In the Matter of 
Township of Bridgewater (A-98/99/100-15) 

In these cases, the governing contract language of the respective agreements required that the salary step increases remain in place after expiration and until the parties reach agreement on a new CNA. Atlantic County and Bridgewater Township committed an unfair labor practice when they altered those terms. 

GMAC Mortgage, LLC v. Tamilynn Willoughby (A-97-15; 076006)


 GMAC Mortgage, LLC v. Tamilynn Willoughby 
(A-97-15; 076006) 
Willoughby satisfied all contingent terms of the May 2010 Agreement, rendering the Agreement permanent and binding. Despite being compelled to engage in subsequent mediations and negotiations in an effort to save her home, Willoughby did not voluntarily abandon the May 2010 Agreement. The chancery court should 

have granted her pro se motion to enforce the Agreement as a permanent loan modification. 

Sunday, July 30, 2017

IN RE: ACCUTANE LITIGATION A-4698-14T1/

 IN RE: ACCUTANE LITIGATION 
A-4698-14T1/A-0910-16T1(CONSOLIDATED) 

In these multicounty litigation (MCL) products liability cases, the Appellate Division holds that the trial court erred in barring plaintiffs' experts from testifying as to certain epidemiological issues, and that Accutane can cause Crohn's disease. Accordingly, the orders dismissing the lawsuits are reversed and the cases are remanded to the trial court for further proceedings. The opinion reviews the legal principles applicable in a Kemp hearing, and provides some guidance for handling MCL cases in which the scientific evidence concerning the product develops over the protracted course of the litigation. 

NORMA S. EHRLICH VS. JEFFREY J. SOROKIN, M.D. A-2781-15T3


 NORMA S. EHRLICH VS. JEFFREY J. SOROKIN, M.D. 
A-2781-15T3 
After suffering complications from a colonoscopy and polypectomy procedure, plaintiff filed a medical malpractice complaint against defendant, alleging negligent treatment. Prior to testimony at trial, plaintiff moved in limine to exclude evidence of her informed consent, arguing such evidence was irrelevant because she did not raise a claim for lack of informed consent. The judge denied plaintiff's motion, and the parties discussed the evidence at trial. 

In a case of first impression in New Jersey, we follow the principle, adopted by various out-of-state courts, that informed consent evidence is irrelevant and prejudicial when the issue is negligent treatment. Because the error here was not harmless, we reverse the no-cause jury verdict and remand the matter for a new trial. 

MAIN STREET AT WOOLWICH, LLC, ET AL. VS. AMMONS SUPERMARKET, INC., ET AL. A-0713-15T3


 MAIN STREET AT WOOLWICH, LLC, ET AL. VS. AMMONS 
SUPERMARKET, INC., ET AL. 
A-0713-15T3 
After plaintiffs successfully defended against litigation brought by defendants challenging approvals for plaintiffs' shopping complex, plaintiffs filed a complaint against defendants, their attorney, and his firm alleging the litigation was a sham intended only to gain advantage over a competing business. 

In a case of first impression, the court adopts the holding in Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., 806 F.3d 162, 180 (3d Cir. 2015), cert. denied, ___ U.S. ___, 136 S. Ct. 2451, 195 L. Ed. 2d 264 (2016), and concludes that, when determining whether a litigant is entitled to immunity under the Noerr-Pennington doctrine, the motion judge was required to consider the allegations in plaintiffs' complaint that the litigation was part of a pattern of sham litigation brought by defendants for the purpose of injuring market rivals rather than to redress actual grievances. 

Twanda Jones v. Morey’s Pier, Inc. (A-75-15

Twanda Jones v. Morey’s Pier, Inc. (A-75-15; 077502) 

When a defendant does not serve a timely notice of claim on a public entity, and is not granted leave to file a late notice of claim, the statute bars that defendant’s cross-claim or third-party claim for contribution and common-law indemnification against the public entity. Accordingly, the Morey defendants’ third-party contribution and common-law indemnification claims against the Association are barred. On remand, the trial court should afford the Morey defendants an opportunity to present evidence that the Association was negligent and that its negligence was a proximate cause of Abiah Jones’s death. If the Morey defendants present prima facie evidence, the trial court should instruct the jury to determine whether any fault should be allocated to the Association. If the jury finds that the Association was negligent and that its negligence was a proximate cause of her death, the trial court should mold any judgment entered in plaintiffs’ favor to reduce the damages awarded to plaintiffs by the percentage of fault that the jury allocates to the Association. 

Twanda Jones v. Morey’s Pier, Inc. (A-75-15

Twanda Jones v. Morey’s Pier, Inc. (A-75-15; 077502) 

When a defendant does not serve a timely notice of claim on a public entity, and is not granted leave to file a late notice of claim, the statute bars that defendant’s cross-claim or third-party claim for contribution and common-law indemnification against the public entity. Accordingly, the Morey defendants’ third-party contribution and common-law indemnification claims against the Association are barred. On remand, the trial court should afford the Morey defendants an opportunity to present evidence that the Association was negligent and that its negligence was a proximate cause of Abiah Jones’s death. If the Morey defendants present prima facie evidence, the trial court should instruct the jury to determine whether any fault should be allocated to the Association. If the jury finds that the Association was negligent and that its negligence was a proximate cause of her death, the trial court should mold any judgment entered in plaintiffs’ favor to reduce the damages awarded to plaintiffs by the percentage of fault that the jury allocates to the Association. 

Edan Ben Elazar v. Macrietta Cleaners, Inc. (A-11-16;


 Edan Ben Elazar v. Macrietta Cleaners, Inc. 
(A-11-16; 078079) 

When a plaintiff is injured by a third party and has no reason to believe that another party, specifically a public entity, is responsible, the discovery rule applies to toll the accrual date that triggers the notice-of-claim requirement. Here, it was error for summary judgment to have been granted to the public-entity defendant based on the record presented, because plaintiffs put forward a reasonable basis to support a determination that the claim against the public entity was diligently pursued and notice of claim was timely filed. 

Edan Ben Elazar v. Macrietta Cleaners, Inc. (A-11-16;


 Edan Ben Elazar v. Macrietta Cleaners, Inc. 
(A-11-16; 078079) 

When a plaintiff is injured by a third party and has no reason to believe that another party, specifically a public entity, is responsible, the discovery rule applies to toll the accrual date that triggers the notice-of-claim requirement. Here, it was error for summary judgment to have been granted to the public-entity defendant based on the record presented, because plaintiffs put forward a reasonable basis to support a determination that the claim against the public entity was diligently pursued and notice of claim was timely filed. 

Capital Health Systems, Inc. v. Horizon Healthcare Services, Inc. (A-29/30-16

Capital Health Systems, Inc. v. Horizon Healthcare 
Services, Inc. (A-29/30-16; 077998); Saint Peter’s 
University Hospital, Inc. v. Horizon Healthcare 
Services, Inc. (A-59-16; 079097) 

Having closely examined the record, the Court rejects the Appellate Division’s determination that the chancery judges encharged with these matters abused their discretion. 

Sunday, July 23, 2017

IN THE MATTER OF WILLIAM R. HENDRICKSON, JR., DEPARTMENT OF COMMUNITY AFFAIRS A-3675-15T1


IN THE MATTER OF WILLIAM R. HENDRICKSON, JR., DEPARTMENT OF COMMUNITY AFFAIRS
A-3675-15T1
If an agency fails to timely act on an administrative law judge's initial decision, by statute it is "deemed adopted," and becomes final. See N.J.S.A. 52:14B-10(c). The court holds that when the lack of a quorum attributable to vacancies caused the agency inaction, the deferential agency standard of review will not be employed. Instead, the court will review the decision using the standard for decisions rendered in bench trials. 

STATE OF NEW JERSEY, EX REL. LEONARD M. CAMPAGNA VS. POST INTEGRATIONS, INC., EBOCOM, INC., AND MARY GERDTS A-1463-15T1


STATE OF NEW JERSEY, EX REL. LEONARD M. CAMPAGNA VS.
          POST INTEGRATIONS, INC., EBOCOM, INC., AND MARY GERDTS
          A-1463-15T1
In this qui tam action, the court was asked to determine whether a claim against a corporation arising from its alleged failure to pay certain statutory obligations owed to the State relates to taxes that are expressly excluded from the purview of the New Jersey False Claims Act (NJFCA), N.J.S.A. 2A:32C-1 to - 18. The statutory obligations included the alternative minimum tax required by the Corporation Business Tax Act, N.J.S.A. 54:10A-1 to -40, and assessments and fees imposed upon foreign corporations by the New Jersey Business Corporation Act, N.J.S.A. 14A:13-1 to -23. The court held that such obligations are taxes as contemplated by the NJFCA and, therefore, the Law Division properly dismissed plaintiff's complaint, which alleged that defendants violated the NJFCA by making false statements in order to avoid paying New Jersey "assessments, fees, license costs and other charges." 

JOHN SMITH VS. ARVIND R. DATLA, M.D., ET AL. A-1339-16T3

JOHN SMITH VS. ARVIND R. DATLA, M.D., ET AL.
          A-1339-16T3
This interlocutory appeal presents novel statute of limitations issues. Plaintiff sued defendants for monetary damages and attorney's fees for (1) invasion of privacy for harmful public disclosure of private facts, (2) violation of the AIDS Assistance Act, N.J.S.A. 26:5C-1 to -14, and (3) medical malpractice arising out the defendant-doctor's alleged disclosure that plaintiff was HIV-positive in the presence of a third party without plaintiff's consent. Defendants moved to dismiss plaintiff's complaint because it was filed more than one year after the disclosure event.
page1image19464 page1image19624 page1image19784 page1image19944 page1image20104 page1image20264 page1image20424 page1image20584

The trial court denied defendants' motion, holding that a two-year statute of limitations applied to all three causes of action. The appellate panel affirmed, agreeing that each of plaintiff's causes of action were subject to the two-year statute of limitations imposed by N.J.S.A. 2A:14-2, not the one- year statute of limitations for defamation imposed by N.J.S.A. 2A:14-3. 

FRANCINE REIBMAN, ETC. VS. JAY H. MYERS, ETC., ET AL. A-0332-15T2


FRANCINE REIBMAN, ETC. VS. JAY H. MYERS, ETC., ET AL.
          A-0332-15T2
In this appeal, the Appellate Division was asked to consider whether plaintiff's property rights in the marital home under the New Jersey Joint Possession Statute N.J.S.A. 3B:28-3 were released, extinguished, or merged by virtue of a subsequent deed granting title by the entirety with defendant husband. This court holds, when plaintiff obtained a fee interest she lost protection under N.J.S.A. 3B:28-3 because her possessory interest merged into the greater fee estate.
As such, plaintiff's interest was subject to liens and an equitable mortgage, particularly, as here, where plaintiff was aware of and enjoyed the benefit of those loans and the parties intended the property to secure repayment. 

OCWEN LOAN SERVICES, LLC VS. MARLA WUEBBENS QUINN A-2668-14T3

OCWEN LOAN SERVICES, LLC VS. MARLA WUEBBENS QUINN
          A-2668-14T3(NEWLY PUBLISHED OPINION FOR JULY 10, 2017)
In 2004, defendants David and Louisa Wuebbens conveyed their home to their daughter, Marla Wuebbens Quinn, while retaining life estates in the property. In 2005, Quinn and defendants executed a $260,000 mortgage on the property in favor of plaintiff's assignor, IndyMac Bank, F.S.B. (the 2005 mortgage). In 2007, Quinn refinanced the mortgage loan for $380,000 with IndyMac (the 2007 mortgage) and used the proceeds, in part, to satisfy the 2005 mortgage. IndyMac's title commitment failed to disclose defendants' recorded life estate interests in the property. As a result, defendants did not execute the 2007 mortgage.
In 2009, IndyMac filed an action to foreclose the 2007 mortgage after Quinn defaulted. The issue presented is whether plaintiff's 2007 mortgage lien takes priority over defendants' earlier recorded life estate interests in the property. Applying principles of replacement and modification recognized in the Restatement (Third) of Property Mortgages (1997), the
page2image19080 page2image19240

court extends its holding in Sovereign Bank v. Gillis, 432 N.J. Super. 36 (App. Div. 2013), so as to grant plaintiff's mortgage limited priority over defendants' life estates. Consequently, the court "capped" plaintiff's mortgage priority at $260,000, and preserved the priority of defendants' life estates over the portion of the 2007 mortgage loan that exceeded that amount. 

FISHER, KRYSTAL AND DAVID VS. CITY OF MILLVILLE A-3351-15T3

FISHER, KRYSTAL AND DAVID VS. CITY OF MILLVILLE
          A-3351-15T3
The court reviewed the statutory requirements for a personal residence real estate tax exemption, granted to certain disabled veterans, honorably discharged, who served in "active service in time of war." Construing the Legislative intent the court concluded the military conflict applicable to plaintiff's period of service, Operation "Enduring Freedom," occurring on or after September 11, 2001, requires the disabling injury occur during service "in a theater of operation and in direct support of that operation." This geographic component was not satisfied by plaintiff who was injured during stateside basic training and never sent with her unit to Afghanistan. Accordingly, plaintiff's disabling injuries were not suffered in a theater of operation or in direct support of a theater of operation, and
page3image20032 page3image20192

thus, were not the result of "active service in time of war," as defined in N.J.S.A. 54:4-8.10(a). 

DUTCH RUN-MAYS DRAFT, LLC VS. WOLF BLOCK, LLP A-0922-15T4


DUTCH RUN-MAYS DRAFT, LLC VS. WOLF BLOCK, LLP
          A-0922-15T4
Reviewing a general jurisdiction challenge, the Appellate Division rejected plaintiff's argument asserting a foreign corporation's registration and acceptance of service of process in New Jersey constituted consent to submit to the general jurisdiction of the courts. Rather, the court adopted the circumscribed view stated in Daimler AG v. Bauman, 571 U.S. __, 134 S. Ct. 746 187 L. Ed. 2d 624 (2014), which requires a court focus on an entity's affiliation with the state, such as the place of incorporation or a continuous, systematic course of business, making the entity "at home" in the forum. Id. at __, 134 S. Ct. at 761, 187 L. Ed. 2d at 641. In light of Daimler, the court rejects the holding in Allied-Signal, Inc. v. Purex Inds., Inc., 242 N.J. Super. 362, 366 (App. Div. 1990), basing general jurisdiction solely on the fiction of implied consent by a foreign corporation's compliance with New Jersey's business registration statute. 

ATLANTIC AMBULANCE CORPORATION VS. JOHN G. CULLUM, ET AL. A-1622-16T2


ATLANTIC AMBULANCE CORPORATION VS. JOHN G. CULLUM, ET AL.
A-1622-16T2
The court addressed an appeal from an order denying class certification on behalf of consumers who alleged that they were overcharged for ambulance services. The court held that consumers were not required to pay the bill for allegedly overpriced services to establish an ascertainable loss under the Consumer Fraud Act (CFA). However, the court held that under the "learned professional" exception, ambulance service providers were not subject to CFA claims, because ambulance services are comprehensively regulated by a State agency. The court also held that plaintiffs could not maintain a breach of contract claim challenging the reasonableness of the rates charged, because the ambulance service's rate-setting was a policy issue to be addressed by the Legislature and agencies within the Executive branch of government. However, plaintiffs could pursue a claim for a refund of a $14 mileage fee for patients who admittedly were not transported to a hospital, because that did not implicate any rate-setting policy issues. 

I/M/O STATE OF NJ AND FOP POLICE LODGE 91 A-0413-15T4


I/M/O STATE OF NJ AND FOP POLICE LODGE 91 A-0413-15T4
The interest arbitration and salary cap provisions of the Police and Fire Public Interest Arbitration Reform Act, N.J.S.A. 34:13A-14 to -16.9, are not limited to situations where an existing collective negotiations agreement (CNA) is expiring. The Act also permits interest arbitration of a newly certified unit's first CNA, but subjects that interest arbitration to the two percent salary cap set forth in N.J.S.A. 34:13A-16.7. 

STATE OF NEW JERSEY, DEP VS. NORTH BEACH 1003, LLC, ET AL. A-3393-15T4


STATE OF NEW JERSEY, DEP VS. NORTH BEACH 1003, LLC, ET AL.
A-3393-15T4/A-3396-15T4/A-3397-15T4/A-3398-15T4/A- 3399-15T4/A-3727-15T4/A-3770-15T4/A-3771-15T4/A-3781- 15T4/A-3782-15T4/A-3783-15T4/A-3786-15T4/A-3787- 15T4/A-3789-15T4/A-3790-15T4/A-3791-15T4/A-3792- 15T4/A-3958-15T4/A-3960-15T4/A-3965-15T4/A-3966- 15T4/A-3967-15T4/A-3969-15T4/A-3970-15T4 (CONSOLIDATED)

page6image9120 page6image9280
These consolidated appeals present the questions whether the New Jersey Department of Environmental Protection (DEP) has the authority to condemn private property to take perpetual easements for shore protection purposes and whether the easements can allow public access to, and use of, the areas covered by the easements. We hold that the DEP has such authority and the easements that allow for publicly funded beach protection projects can include public access and use. Thus, we affirm the trial court's final judgments finding that the DEP properly exercised its power of eminent domain and appointing commissioners to determine the value of the takings. 

MICHAEL ABBOUD VS. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA A-3434-14T1

MICHAEL ABBOUD VS. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA
A-3434-14T1
The court affirms the trial court's summary judgment dismissal of plaintiff's claim for coverage under a directors and officers (D&O) liability policy. The insurer properly denied coverage under the policy's "insured vs. insured" exclusion, which generally bars D&O coverage for claims by one insured director or officer against another. The court discerns no ambiguity in the exclusion, and finds no merit in plaintiff's arguments that (1) a showing of collusion between the insureds
page6image19888 page6image20048

is required to invoke the exclusion, and (2) the exclusion should not be enforced because it would violate his reasonable expectations. 

Wednesday, July 19, 2017

ATLANTIC AMBULANCE CORPORATION VS. JOHN G. CULLUM, ET AL. A-1622-16T2


ATLANTIC AMBULANCE CORPORATION VS. JOHN G. CULLUM, ET AL.
A-1622-16T2
The court addressed an appeal from an order denying class certification on behalf of consumers who alleged that they were overcharged for ambulance services. The court held that consumers were not required to pay the bill for allegedly overpriced services to establish an ascertainable loss under the Consumer Fraud Act (CFA). However, the court held that under the "learned professional" exception, ambulance service providers were not subject to CFA claims, because ambulance services are comprehensively regulated by a State agency. The court also held that plaintiffs could not maintain a breach of contract claim challenging the reasonableness of the rates charged, because the ambulance service's rate-setting was a policy issue to be addressed by the Legislature and agencies within the Executive branch of government. However, plaintiffs could pursue a claim for a refund of a $14 mileage fee for patients who admittedly were not transported to a hospital, because that did not implicate any rate-setting policy issues. 

I/M/O STATE OF NJ AND FOP POLICE LODGE 91 A-0413-15T4


I/M/O STATE OF NJ AND FOP POLICE LODGE 91 A-0413-15T4
The interest arbitration and salary cap provisions of the Police and Fire Public Interest Arbitration Reform Act, N.J.S.A. 34:13A-14 to -16.9, are not limited to situations where an existing collective negotiations agreement (CNA) is expiring. The Act also permits interest arbitration of a newly certified unit's first CNA, but subjects that interest arbitration to the two percent salary cap set forth in N.J.S.A. 34:13A-16.7. 

STATE OF NEW JERSEY, DEP VS. NORTH BEACH 1003, LLC, ET AL. A-3393-15T4/A-3396


STATE OF NEW JERSEY, DEP VS. NORTH BEACH 1003, LLC, ET AL.
A-3393-15T4/A-3396-15T4/A-3397-15T4/A-3398-15T4/A- 3399-15T4/A-3727-15T4/A-3770-15T4/A-3771-15T4/A-3781- 15T4/A-3782-15T4/A-3783-15T4/A-3786-15T4/A-3787- 15T4/A-3789-15T4/A-3790-15T4/A-3791-15T4/A-3792- 15T4/A-3958-15T4/A-3960-15T4/A-3965-15T4/A-3966- 15T4/A-3967-15T4/A-3969-15T4/A-3970-15T4 (CONSOLIDATED)

page6image9120 page6image9280
These consolidated appeals present the questions whether the New Jersey Department of Environmental Protection (DEP) has the authority to condemn private property to take perpetual easements for shore protection purposes and whether the easements can allow public access to, and use of, the areas covered by the easements. We hold that the DEP has such authority and the easements that allow for publicly funded beach protection projects can include public access and use. Thus, we affirm the trial court's final judgments finding that the DEP properly exercised its power of eminent domain and appointing commissioners to determine the value of the takings. 

Maryanne Grande v. Saint Clare’s Health System (A-67-15;


Maryanne Grande v. Saint Clares Health System
          (A-67-15; 076606)
          On the record before the trial court, issues of
          material fact exist.  The Court affirms and modifies
          the judgment of the Appellate Division and remands the
          matter to the trial court for further proceedings.

North Jersey Media Group, Inc. v. Township of Lyndhurst (A-35-15


North Jersey Media Group, Inc. v. Township of
          Lyndhurst (A-35-15; 076184)
          NJMG was entitled to disclosure of unredacted Use of
          Force Reports, under OPRA, and dash-cam recordings of
          the incident, under the common law.  Investigative
          reports, witness statements, and similarly detailed
          records were not subject to disclosure at the outset
          of the investigation, when they were requested.

John Paff v. Galloway Township (A-88-15


John Paff v. Galloway Township (A-88-15; 077692)
          The Appellate Division’s overly constrictive reading of
          OPRA cannot be squared with the OPRA’s objectives or
          statutory language.  OPRA recognizes that government
          records will constitute not only paper documents, but
          also information electronically stored.  The fields of
          information covering “sender,” “recipient,” “date,” and
          “subject” in the emails sent by the Galloway Township
          Chief of Police and Clerk over a two-week period are
          government records under OPRA.

Monday, June 19, 2017

KEYKO GIL, ET AL. VS. CLARA MAASS MEDICAL CENTER, ET AL. A-4034-14T4

KEYKO GIL, ET AL. VS. CLARA MAASS MEDICAL CENTER, ET AL.
A-4034-14T4
In this appeal, the court examined clauses contained in insurance policies covering a hospital to determine, among other things, whether the trial judge erred in rejecting plaintiffs' arguments that an allegedly negligent physician was also covered
page1image20000 page1image20160 page1image20320 page1image20480 page1image20640

because he was the hospital's "employee" or a "leased worker," or because his limited liability company was "affiliated or associated" with the hospital. The court held that the policy language could not be plausibly interpreted to provide coverage to the physician or his limited liability company, and affirmed the summary judgment entered in favor of the insurers.
     Judge Ostrer filed a concurring opinion.

MARC LARKINS, ETC. VS. GEORGE J. SOLTER, JR., ET AL. A-2573-15T2


MARC LARKINS, ETC. VS. GEORGE J. SOLTER, JR., ET AL.
          A-2573-15T2
The legal issue on appeal is whether the State Comptroller is obligated to disclose his reasons for selecting the North Bergen Board of Education for a performance audit before commencing the audit. We held that N.J.S.A. 52:15C-1 to -24 (the Act) does not impose any such requirement. To hold otherwise would undermine the purpose of the Act; render meaningless an auditee's unambiguous statutory obligation to provide full assistance and cooperation with any audit; and unduly delay the conduct of audits. 

THE STOP & SHOP SUPERMARKET COMPANY, LLC, v. THE COUNTY OF BERGEN; THE BERGEN COUNTY PLANNING BOARD; AND THE COUNTY OF BERGEN DEPARTMENT OF PLANNING AND ECONOMIC DEVELOPMENT A-2134-14T1


THE STOP & SHOP SUPERMARKET COMPANY, LLC, v. THE COUNTY OF BERGEN; THE BERGEN COUNTY PLANNING BOARD; AND THE COUNTY OF BERGEN DEPARTMENT OF PLANNING AND ECONOMIC DEVELOPMENT A-2134-14T1/A-4630-14T1(CONSOLIDATED)
(NEWLY PUBLISHED OPINION FOR JUNE 14, 2017)
page2image12144 page2image12304 page2image12464 page2image12624
The published portion of this opinion addresses the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The Appellate Division holds OPRA litigation is authorized to allow a party who has been denied access to records to obtain access to those records, and counsel fees are authorized under OPRA if the litigation causes the production of those records. Because plaintiff had already obtained the responsive records before it filed its declaratory judgment action, its action was moot when filed, and plaintiff was not entitled to counsel fees. Plaintiff cannot avoid the proscription against litigating moot issues by bringing a declaratory judgment action. 

Sunday, June 4, 2017

JOSHUA HAINES VS. JACOB W. TAFT, ET AL/ TUWONA LITTLE VS. JAYNE NISHIMURA A-5503-14T4/

JOSHUA HAINES VS. JACOB W. TAFT, ET AL/ TUWONA LITTLE VS. JAYNE NISHIMURA 
A-5503-14T4/ A-0727-15T2(CONSOLIDATED) 
In these automobile negligence actions, plaintiffs were injured in a car accident and incurred more than $15,000 in medical expenses. The PIP coverage in each plaintiff's policy (both plaintiffs had standard automobile policies) was limited to $15,000 per person, per accident. Plaintiffs sought to recover those expenses exceeding $15,000 from the alleged negligent defendants. 
Defendants and amici (interest groups which represented the insurance industry) argued various PIP statutes precluded insureds from recovering medical expenses above the PIP limit. Among other things, they contended permitting the recovery of medical expenses above an injured insured's PIP limit will bring back the days when court calendars were clogged with law suits that required a determination of who was at fault for the accident causing a plaintiff's injuries, a result the No-Fault Act intended to eliminate. 

Whether an injured insured may recover medical expenses above his or her PIP limits has never been determined by an appellate court, and trial courts have been providing conflicting rulings. After examining the subject statutes, including the legislative history for each, and Supreme Court precedent, we concluded the Legislature intended an insured covered with a standard policy may recover from the tortfeasor medical expenses above the PIP limit in his or her policy, up to $250,000. While certain minor medical expenses, such as copayments and deductibles cannot be recovered, the Legislature did not intend to preclude the recovery of the medical expenses at issue here, which exceeded the $15,000 PIP limit by approximately $10,000 in one and $28,000 in the other matter. 

RUCKSAPOL JIWUNGKUL, ETC. VS. DIRECTOR, DIVISION OF TAXATION A-4089-15T2

RUCKSAPOL JIWUNGKUL, ETC. VS. DIRECTOR, DIVISION OF 
TAXATION 
A-4089-15T2 
The surviving partner of a domestic partnership, N.J.S.A. 26:8A-2(d) (DPA), filed New Jersey tax returns on behalf of his partner's estate that were consistent with their status as domestic partners. He claimed the spousal exemption allowed for domestic partners under the New Jersey Inheritance Tax, N.J.S.A. 54:34-2(a)(1), and, because no spousal deduction was permitted for domestic partners under the New Jersey Estate Tax, N.J.S.A. 54:38-1 to -16, he did not claim such a deduction. He later filed an amended estate tax return in which he claimed a marital deduction under the Estate Tax. This deduction was authorized to members of a civil union, N.J.S.A. 37:1-32(n); N.J.A.C. 18:26-3A.8(e), a formal relationship plaintiff and his partner had declined to enter, but was not authorized under the DPA. 
In his appeal from the Tax Court's decision affirming the denial of the marital deduction, plaintiff argues the DPA violates the equal protection guarantee of the New Jersey Constitution, Art. I, Para. 1, and there is no rational basis for the marital deduction to be different under the New Jersey Inheritance Tax Law and the New Jersey Estate Law. We affirm, substantially for the reasons set forth in the cogent and comprehensive written opinion of Judge Patrick DeAlmeida, P.J.T.C., Jiwungkul, as Executor of the Estate of Michael R. Connolly, Jr. v. Director, Division of Taxation, Docket No. 009346-2015 (May 11, 2016). 

05/30/17 KATHLEEN LEGGETTE VS. 

KATHLEEN LEGGETTE VS. GOVERNMENT EMPLOYEES INSURANCE COMPANY ("GEICO"), ET AL. A-1911-15T3

KATHLEEN LEGGETTE VS. GOVERNMENT EMPLOYEES INSURANCE 
COMPANY ("GEICO"), ET AL. 
A-1911-15T3 

The issue of first impression presented in this matter is whether an out-of-state automobile insurance policy is deemed to provide PIP benefits when the named insured, while a pedestrian, is injured by a New Jersey driver. We conclude medical expenses for injuries suffered while a pedestrian, are not covered by N.J.S.A. 17:28-1.4, commonly known as the "Deemer Statute," which is triggered only when there is a nexus between the out-of-state automobile and the accident.