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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.
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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
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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)

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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
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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)

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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
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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)
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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. 

Monday, May 29, 2017

DCPP VS. J.E.C. I/M/O THE GUARDIANSHIP OF C.I.B. A-2565-15T2


 DCPP VS. J.E.C. I/M/O THE GUARDIANSHIP OF C.I.B. 
A-2565-15T2 
As a matter of first impression, the court concludes that the special evidentiary provision codified at N.J.S.A. 9:6-8.46(a)(4), allowing the admission of corroborated hearsay statements by children, applies only in abuse or neglect cases litigated under Title 9, and does not extend to guardianship cases litigated under Title 30 that seek the termination of a parent's rights. 
Despite indicia of contrary customs, the court concludes that the plain meaning of N.J.S.A. 9:6-8.46(a)(4) confines its application to "hearings under this act," i.e. Title 9 proceedings. In addition, the court's statutory construction is supported by the legislative history and the significant differences between Title 9 cases and Title 30 termination cases with respect to, among other things, the comparative stakes involved for a defendant and the higher burden of proof required to justify the permanent termination of a parent's rights. 

The Legislature remains free to amend Title 30 to extend this special hearsay exception to termination cases, upon considering 

Oxford Realty Group Cedar v. Travelers Excess and Surplus Lines Company (A-85-15

Oxford Realty Group Cedar v. Travelers Excess and 
Surplus Lines Company (A-85-15; 077617) 

Although the Policy assigns debris removal a coverage sublimit, it does not constitute a self-contained policy provision outside the application of the $1,000,000 flood limit. Because the terms of the Policy are not ambiguous, the Court need not address contentions about contra proferentem or the doctrine of reasonable expectations. 

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

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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) (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.