Sunday, January 29, 2017
HARRY SCHEELER VS. OFFICE OF THE GOVERNOR, ANDREW J. MCNALLY, ET AL./ HEATHER GREICO VS. NEW JERSEY DEPARTMENT OF EDUCATION, ET AL./ JOHN PAFF VS. NEW JERSEY MOTOR VEHICLE COMMISSION, ET AL. A-1236-14T3/
HARRY SCHEELER VS. OFFICE OF THE GOVERNOR, ANDREW J.
MCNALLY, ET AL./ HEATHER GREICO VS. NEW JERSEY DEPARTMENT OF EDUCATION, ET AL./ JOHN PAFF VS. NEW JERSEY MOTOR VEHICLE COMMISSION, ET AL.
The Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, does not permit government agencies to deny a citizen access to all requests for public records by third-parties, and Gannett N.J. Partners, LP v. County of Middlesex, 379 N.J. Super. 205 (App. Div. 2005), does not provide authority for the blanket denial of access to all third-party OPRA requests.
IN THE MATTER OF THE ESTATE OF ARTHUR E. BROWN
In this appeal, the decedent was institutionalized in a nursing home, suffering from Alzheimer's disease. His wife, who predeceased him, had disinherited him, and he did not claim his one-third elective share of her augmented estate pursuant to N.J.S.A. 3B:8-1. We affirmed the trial court's denial of entry of judgment discharging a priority lien the Division of Medical Assistance and Health Services filed against the decedent's estate pursuant to N.J.S.A. 30:4D-7.8 for reimbursement of Medicaid benefits the decedent received during his lifetime. We also affirmed the court's calculation of the decedent's elective share.
We determined that the decedent was entitled to an elective share of his deceased wife's augmented estate that included the proceeds from the sale of the couple's former marital home, which had been transferred to the wife as sole owner prior to the decedent's admission into the nursing home. We rejected appellant's argument that N.J.S.A. 3B:8-1 did not apply to the decedent because he and his wife had been living separate and apart at the time of her death, and the couple ceased to cohabit as man and wife under circumstances that gave the wife a cause of action for divorce under N.J.S.A. 2A:34-2(d) or (f). We also rejected appellant's argument that the decedent's estate had no right to an elective share because that right was personal to him and could only be exercised during his lifetime as per N.J.S.A. 3B:8-11.
We rejected appellant's alternative argument that the decedent's elective share was zero because the proceeds from the
sale of the former marital home were excluded from the wife's augmented estate under N.J.S.A. 3B:8-5. Lastly, we rejected appellant's argument that the value of some of the decedent's assets should be deducted from his elective share.
Sunday, January 22, 2017
LINDA TISBY VS. CAMDEN COUNTY CORRECTIONAL FACILITY/ LINDA TISBY VS. CAMDEN COUNTY, ET AL. A-0326-15T3/
LINDA TISBY VS. CAMDEN COUNTY CORRECTIONAL FACILITY/ LINDA TISBY VS. CAMDEN COUNTY, ET AL.
In this case, we affirm the dismissal of two complaints filed by a Camden County Corrections Officer who was removed from her position because she wore a khimar with her work uniform, consistent with the practice of her faith. Based on the reasoning of the trial judges, we find an accommodation would impose an undue hardship on defendants based upon safety and security concerns, and the second dismissal was appropriate based upon the entire controversy doctrine.
Plaintiff filed her complaint alleging violations under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, asserting defendant's failure to accommodate sincere religious beliefs, and a complaint in lieu of prerogative writ seeking reinstatement and back pay. After considering arguments, the trial judge recognized plaintiff's sincerely held religious belief, but dismissed the complaint, determining an accommodation would impose an undue hardship on defendants because of overriding safety and security concerns of the prison and the importance of uniform consistency and neutrality.
A different judge dismissed the second prerogative writ complaint, citing the entire controversy doctrine because plaintiff's complaints were only slightly distinguishable and should have been heard as one action.
Reviewing federal authority touching on this issue, we conclude summary judgment dismissal was correctly entered. Any "inference of discrimination" based on the rejection of the accommodation request grounded on plaintiff's sincerely held religious beliefs was soundly rebutted by the employer's evidence of risks to safety, security and maintaining orderly objective operations in the prison. Further, plaintiff offered no proof of pretext. See Zive v. Stanley Roberts, Inc.; 182 N.J. 436, 447 (2005) (adopting burden shifting test set forth in McDonnell Douglass Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)).
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. S.W. AND R.W. IN THE MATTER OF AL.W, AN.W., M.W. AND N.W. A-4020-14T4
NEW JERSEY DIVISION OF CHILD PROTECTION AND
PERMANENCY VS. S.W. AND R.W.
IN THE MATTER OF AL.W, AN.W., M.W. AND N.W.
In this Title Nine matter, the date of defendant's fact-finding hearing was advanced from September 12 to September 11, 2013. There is no indication that defendant was advised of the date change and he did not appear for the hearing. Defendant's counsel agreed to proceed with a fact-finding hearing "on the papers." Based solely on documents submitted by the Division, the judge found defendant abused or neglected his four children when he relapsed and used cocaine after his arrest for failure to pay child support for the four children who were in his custody.
After defendant's arrest, the children were cared for by their older siblings and then taken to their mother's house. The children were not harmed and there was no proof that defendant's use of cocaine exposed any of the children to imminent danger or a substantial risk of harm.
There was also no evidence that defendant knowingly waived his right to a fact-finding hearing and agreed to have the judge decide whether he abused or neglected his children solely based on her review of reports prepared by Division caseworkers. Because statutory and constitutional rights are impacted when a defendant waives the right to testify on his own behalf, to call witnesses, to cross-examine witnesses who testify against him, and to have a judge make credibility determinations, there is no reason why the protections afforded to defendants entering stipulations of abuse or neglect announced in Div. of Youth & Family Servs. v. M.D., 417 N.J. Super. 583, 617-18 (App. Div. 2011), should not be required when a defendant waives the right to a fact-finding hearing.
Even where a defendant makes a knowing waiver and agrees to a determination on the papers, the judge must reject the abbreviated procedure and proceed with a testimonial hearing if the record contains conflicting facts critical to the determination.
DOMINIC ANDALORA, ET AL. VS. R.D. MECHANICAL
CORP., ET AL. VS. SWIFT CONSTRUCTION, LLC
This case addresses a series of procedural errors in the handling of insurance coverage issues relating to a construction accident lawsuit. Once the injury lawsuit was settled, the general contractor's (gc's) insurer, which had contributed to the settlement under protest, was the real party in interest
with respect to an action seeking reimbursement of its contribution from the subcontractor's insurer. The trial court erred in dismissing, with prejudice, the gc's contractual indemnification lawsuit against the subcontractor. Thereafter, the gc's insurer sued the subcontractor in its own name. On this appeal, the appropriate remedy was to amend the order on appeal to a without-prejudice dismissal, and permit the insurer to pursue its own complaint as subrogee.
In re the Declaratory Judgment Actions Filed by Various Municipalities, County of Ocean, Pursuant to the Supreme Court’s Decision in In re Adoption of N.J.A.C. 5:96, 221 N.J. 1 (2015) (A-1-16;
In re the Declaratory Judgment Actions Filed by Various Municipalities, County of Ocean, Pursuant to the Supreme Court’s Decision in In re Adoption of N.J.A.C. 5:96, 221 N.J. 1 (2015) (A-1-16; 077565)
Towns are constitutionally obligated to provide a realistic opportunity for their fair share of affordable housing for low- and moderate-income households formed during the gap period and presently existing in New Jersey. A form of present-need analysis under the Fair Housing Act—redefined to include a component premised on a calculation of those low- and moderate-income New Jersey households, newly formed since 1999, that presently exist and are entitled to their opportunity of access to affordable housing—provides the appropriate approach to addressing statewide and regional need. The modification of the previous definition of a present-need analysis is essential in order to address the failure of COAH to perform its required mission, in connection with a constitutional obligation, for a period of time affecting almost a generation of New Jersey citizens.
Brian Royster v. New Jersey State Police
The Court agrees with the Appellate Division that sovereign immunity precludes Royster’s ADA claim. The NJSP’s litigation conduct did not amount to a waiver of immunity, nor is the NJSP estopped from asserting the
defense of sovereign immunity against Royster’s ADA claim. However, the interests of justice require reinstatement of Royster’s LAD failure-to-accommodate claim. The Court reinstates the LAD claim and remands to the trial court to mold the jury’s verdict and enter judgment on Royster’s LAD claim in favor of Royster and against the NJSP in the amount of $500,000.
Thursday, January 5, 2017
We do not provide coverage under this endorsement for "property damage" or "bodily injury" sustained by an "insured":
Who is an owner of a motor vehicle:
Insured under a basic automobile insurance policy issued in accordance with New Jersey law or regulation; or Required to be insured in accordance with New Jersey law or regulation, but not insured for this coverage or any similar coverage.
This includes a trailer of any type used with a vehicle described in and above.
However, this Exclusion does not apply to you unless you are "occupying", at the time of the accident, a motor vehicle described in and above.
[(emphasis in original).]
An "insured" is not the named insured under this policy; That "insured" is a named insured under one or more other policies providing similar coverage; and All such policies have a limit of liability for similar coverage which is less than the limit of liability for this coverage;
then our maximum limit of liability for that "insured", for all damages resulting from any one accident, shall not exceed the highest applicable limit of liability under any insurance providing coverage to that "insured" as a named insured.