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Sunday, February 26, 2017

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

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

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

Wednesday, February 22, 2017

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


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

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

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


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

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

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

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

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

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

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

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

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


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

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

Sunday, February 12, 2017

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


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

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


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

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


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

Sunday, February 5, 2017

Givaudan Fragrances Corporation v. Aetna Casualty & Surety Compan

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

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