Personal Injury and Civil Cases NJ

PAUL EMMA VS. JESSICA EVANS A-2303-10T3

2012-01-26T15:02:00.003-08:00

PAUL EMMA VS. JESSICA EVANS           A-2303-10T3

     In Ronan v. Adely, 182 N.J. 103 (2004) and Gubernat v. Deremer, 140 N.J. 120 (1995), the Court established a presumption in favor of the choice of a parent of primary residence (PPR) when seeking a change of the surname of a child born out of wedlock.  In this appeal, the court rejected the argument that this presumption should be applied when, following a divorce, the PPR seeks to change the surname of children born during the course of a marriage.  01-20-12

IN THE MATTER OF THE CIVIL COMMITMENT OF U.C. A-5012-09T2

2012-01-26T15:02:00.001-08:00

IN THE MATTER OF THE CIVIL COMMITMENT OF U.C.           A-5012-09T2

     The Legislature has delegated exclusive authority to the Division of Developmental Disabilities to determine the appropriate placement of a developmentally disabled person eligible for its services.  Therefore, a trial court that has placed a developmentally disabled civil committee on "continued extension pending placement" (CEPP) status lacks the authority to order the Division to fund that person's placement in a particular facility the court determines to be most appropriate.  01-20-12

A&M FARM & GARDEN CENTER VS. AMERICAN SPRINKLER MECHANICAL, L.L.C. A-2921-10T1

2012-01-26T15:00:00.000-08:00

 A&M FARM & GARDEN CENTER VS. AMERICAN SPRINKLER           MECHANICAL, L.L.C.

A-2921-10T1

Rule 4:23-5(a)(3), which governs the dismissal or suppression of pleadings with prejudice for failure to provide discovery, requires a motion judge to take action to obtain compliance with the requirements of the rule. Despite obvious breaches of the rule's requirements, the motion judge here granted an unopposed motion to dismiss plaintiff's complaint with prejudice without taking any action to secure compliance. We hold that, when a court considers such a motion and there is nothing before the court showing that a litigant has received notice of its exposure to the ultimate sanction, the court must take some action to obtain compliance with the requirements of the rule before entering an order of dismissal or suppression with prejudice. 01-17-12

BELL TOWER CONDOMINIUM ASSOCIATION VS. PAT HAFFERT A-3218-10T2

2012-01-26T14:59:00.000-08:00

BELL TOWER CONDOMINIUM ASSOCIATION VS. PAT HAFFERT           A-3218-10T2

     Although a portion of the Condominium Act (Act) requires condominium associations to establish a "fair and efficient procedure for the resolution of housing-related disputes" between individual unit owners and the association, or between unit owners, "as an alternative to litigation," the Act does not define the term "housing-related disputes" contained in N.J.S.A. 46:8B-14(k).  Because the long-established public policy of this State favors alternative dispute resolution, and because the Legislature chose broad and unconditional language when it required the arbitration of "housing-related disputes," we construe the term broadly.  We hold that "housing-related disputes" refers to any dispute arising directly from the condominium relationship.  Without limitation, our opinion provides examples of disputes that would not be "housing- related," such as automobile accidents in the condominium parking lot, crimes committed by one unit owner against another, or a commercial dispute arising from a failed business venture between two unit owners.  01-12-12

REPOSSESSION SPECIALISTS, ET AL. VS. GEICO INSURANCE COMPANY ANNETTA JACKSON VS. REPOSSESSION SPECIALISTS INC., ET AL.

2012-01-26T14:58:00.000-08:00

REPOSSESSION SPECIALISTS, ET AL. VS. GEICO INSURANCE           COMPANY

          ANNETTA JACKSON VS. REPOSSESSION SPECIALISTS INC., ET           AL.           A-2712-10T1

     Interpreting the omnibus clause of a personal automobile insurance policy, the court determines that an entity that repossessed the policy holder's automobile after the policy holder defaulted under a secured car loan, was not a user "with permission" under the policy and therefore was not entitled to coverage.  The court reasons that the repossessor's use was not permissive because the repossessor's use was as of right under both the installment credit agreement and the Uniform Commercial Code, and the policy holder lacked the power to revoke the repossessor's right to use.  The court therefore affirmed the

trial court's grant of summary judgment to the policy holder's insurer.  01-12-12

May L. Walker v. Carmelo Guiffre (066969; A-72-10) Bobbie Humphries v. Powder Mill Shopping Plaza (067267; A-100-10)

2012-01-26T14:56:00.001-08:00

 May L. Walker v. Carmelo Guiffre (066969; A-72-10)           Bobbie Humphries v. Powder Mill Shopping Plaza           (067267; A-100-10)

          The mechanisms for awarding attorneys’ fees, including           contingency enhancements, adopted in Rendine remain in           full force and effect as the governing principles for           awards made pursuant to New Jersey fee-shifting           statutes.   1-25-12

Borough of Sayreville v. 35 Club, L.L.C. (067092; A-66-10)

2012-01-26T14:55:00.001-08:00

 Borough of Sayreville v. 35 Club, L.L.C.           (067092; A-66-10)

          In evaluating the adequacy of alternative channels of           communication when deciding an as-applied           constitutional challenge to the State’s statute

limiting the places where sexually-oriented businesses

          may operate, trial courts are not precluded from           considering the existence of sites that are located           outside of New Jersey but that are found within the           relevant market area as defined by the parties’           experts.  1-19-12

Selective Insurance Company of America v. Arthur C. Rothman, M.D.

2012-01-26T14:54:00.003-08:00

Selective Insurance Company of America v. Arthur C.           Rothman, M.D. (066630; A-60-10)

          Physician Assistants are not authorized to perform the           electrodiagnostic test known as needle           electromyography (EMG).  The Court declines to           consider defendant’s application that its decision be           given only prospective effect.  1-18-12

Donald T. Polzo v. County of Essex

2012-01-26T14:54:00.001-08:00

Donald T. Polzo v. County of Essex (066910;           A-74/75-10)

          Viewing the record in the light most favorable to           plaintiff, it cannot be concluded that the County was           on constructive notice of a “dangerous condition” on           the shoulder of its roadway that “created a reasonably           foreseeable risk” of death, or that the failure to           correct the depression before the accident was           “palpably unreasonable.”  1-18-12

JOHN CAMBRIA VS. TWO JFK BLVD, LLC, ET AL. VS. JFK FOOD & DELI, INC., ET AL. A-0802-10T2

2012-01-08T18:04:00.001-08:00

JOHN CAMBRIA VS. TWO JFK BLVD, LLC, ET AL. VS. JFK

FOOD & DELI, INC., ET AL.

A-0802-10T2

In this action, plaintiff was injured as a result of a slip

and fall on ice in the parking lot of a strip mall. In the

appeal, the court considered whether a tenant's insurer owed any

duty to the landlord and the landlord's real estate manager

where the record revealed that, despite agreement, the tenant

had failed to have the landlord named as an additional insured.

The trial court entered summary judgment in favor of the

landlord and real estate manager based on the tenant's insurer's

policy term that it would provide coverage for "[a]ny person

. . . acting as your real estate manager." The court reversed,

finding there could only be coverage if it could be shown that

the real estate manager was the tenant's real estate manager and

concluding that the evidence did not support a finding that the

tenant bore any responsibility for the parking lot area. As a

result, the real estate manager did not act for the tenant, only

the landlord, in maintaining the parking lot. 01-05-12

Summary judgment denied in ski accident DANIEL ANGLAND and DANIEL WHEELER, CO-ADMINISTRATORS OF THE ESTATE OF ROBERT E. ANGLAND, and CHARLES JOHN

2011-12-26T18:24:00.000-08:00

Summary judgment denied in ski accident

DANIEL ANGLAND and DANIEL

WHEELER, CO-ADMINISTRATORS

OF THE ESTATE OF ROBERT E.

ANGLAND, and CHARLES

JOHNSON, IV, ADMINISTRATOR

OF THE ESTATE OF NANCY

ANGLAND, v. MOUNTAIN CREEK RESORT, INC.,

a New Jersey Corporation,

and WILLIAM TUCKER BROWNLEE,

Defendant-Appellant.

MOUNTAIN CREEK RESORT, INC.,

Third-Party Plaintiff/

Respondent,

WILLIAM TUCKER BROWNLEE,

Third-Party Defendant.

___________________________________________________

October 7, 2011

Argued May 31, 2011 – Decided

Before Judges A.A. Rodríguez and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0474-08.

John Burke argued the cause for appellant (Burke & Potenza, attorneys; Mr. Burke, of counsel and on the brief).

Phillip C. Wiskow argued the cause for respondents the Administrators of the Estate of Robert E. Angland and Nancy Angland (Gelman, Gelman, Wiskow & McCarthy, attorneys; Mr. Wiskow, of counsel and on the brief).

Hueston McNulty, attorneys for respondent Mountain Creek Resort, Inc. (Samuel J. McNulty and John F. Gaffney, of counsel and on the brief).

PER CURIAM

William Tucker Brownlee moved for leave to appeal from the August 31, 2010 interlocutory order denying his motion for summary judgment against plaintiffs, the Administrators of the Estate of Robert E. Angland and Nancy Angland, and Mountain Creek Resort, Inc. (Mountain Creek). We initially denied the motion. Angland v. Mountain Creek, et al., No. M-403-10 (App. Div. October 14, 2010). However, the Supreme Court granted leave to appeal and summarily remanded to us to consider the merits on February 15, 2011.

These are the facts presented to the summary judgment judge. On Friday, January 19, 2007, shortly before noon, plaintiff's decedent, Robert Angland, suffered injuries resulting in his death while skiing at a ski area operated by defendant Mountain Creek. The facts are sharply disputed. However, all parties agree that just before the accident, defendant William Tucker Brownlee was snowboarding at Mountain Creek on the same slope as decedent. Brownlee and Angland made contact.

Besides these two points, the parties' versions of the facts diverge. According to Brownlee, as he was snowboarding on the far right side of the trail, an unidentified skier wearing a brown puffy jacket came from his left and cut directly in front of him. In order to avoid the unidentified skier, Brownlee turned quickly to his left. In doing so, Brownlee's snowboard and the decedent's skis became entangled. The two men collided, fell, and slid downhill. Decedent ultimately impacted a concrete bridge headfirst. He died as a result. Brownlee stopped sliding. He stood up and went to Angland's assistance. The ski patrol arrived and took decedent for medical assistance.

According to plaintiffs, there were almost no skiers on the trail at the time of the collision between Brownlee and decedent. Plaintiffs allege that Brownlee's "phantom skier" scenario is impeached by other evidence. Brownlee's version is that the phantom skier went in front of him and to his left. At Brownlee's deposition, he testified the phantom skier was at "eleven o'clock" to his position, and that the phantom skier cut to his right and decreased his speed. As a result, Brownlee cut to his left. Before Brownlee's snowboard went over one of decedent's skis and under the other, Brownlee acknowledged that he was out of control.

Immediately after the accident, Greg Pack, Vice President and Managing Director of Mountain Creek, skied over to Brownlee, who was approximately fifteen feet from Angland and the bridge. According to Pack, less than one minute after the accident, Brownlee stated that he was cut-off and involved in a collision.

Within thirty minutes of the accident, Brownlee told his close high school friend, Keith Eilerstan, who accompanied him to Mountain Creek that day, that a lady fell in front of him, and as a result, he steered off to his right and collided with decedent. Brownlee also gave a written statement to Mountain Creek's ski patrol and spoke to the Vernon Police Department on the day of the accident.

In not one of Brownlee's statements to Pack, Eilerstan, Mountain Creek's ski patrol or the Vernon police on the day of the accident did he identify the phantom skier by way of age, sex or clothing.

In a written statement, and in certified answers to interrogatories provided months later, Brownlee indicated that decedent fell and slid down the hill after the collision. Yet, he testified at his deposition soon after that he did not see decedent fall or slide.

Plaintiffs also note that Mountain Creek's accident reconstruction expert has prepared a report stating that the collision between Brownlee and Angland most likely occurred approximately one hundred feet from the bridge. It is also likely that Angland's multiple facial fractures were caused by the collision between the two men, as opposed to by contact with the bridge.

Plaintiffs' liability expert, Irving S. Scher, Ph.D., a Biomechanical Engineer, has opined that Brownlee violated the standard of care set by N.J.S.A. 5:13-1 to -11 (Ski Act), the New Jersey statute that defines the duties involved in skiing. Specifically, N.J.S.A. 5:13-4 provides the duties of a skier. According to the report, the deviation from the statutory standard occurred when Brownlee failed to keep a proper lookout, made a panic stop, and turned to his left in front of decedent.

Plaintiffs sued Mountain Creek and Brownlee. After a period of discovery, Mountain Creek and Brownlee moved for summary judgment. Judge William J. McGovern, III, denied Brownlee's motion for summary judgment, and granted Mountain Creek's motion. In a written opinion, dated August 31, 2010, the judge concluded that, in viewing the facts in the light most favorable to Brownlee, as required by Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995), Mountain Creek was entitled to summary judgment on the issue of the Ski Act providing a standard of care. The judge acknowledged that the purpose of the Ski Act was announced by the Legislature in N.J.S.A. 5:13-1(b). This section of the Ski Act provides that "the purpose of this law is to make explicit a policy of this State which clearly defines the responsibility of ski area operators and skiers." N.J.S.A. 5:13-1(b). The judge noted that the Supreme Court has recognized that the Ski Act completely replaces the common law with respect to the activities and persons it covers.

[T]he analysis of liability under the Ski Statute and the analysis under the common law of negligence have significant parallels.

That fact, coupled with the Legislature's statements of intent, lead us to conclude that where the Ski Statute properly applies, the Legislature intended completely to displace the common law with regard to the statutorily defined parties. The Ski Statute was intended to "clearly define[] the responsibility of ski area operators." N.J.S.A. 5:13-1(b). The legislative committee statement stated as a primary concern the uncertainty over operator liability following Vermont's Sunday^[[1]] case. That interest would have been poorly served had the Ski Statute merely supplemented the common law. By codifying, as modified, fundamental principles of negligence as they apply to skiers and ski-area operators, the Legislature provided certainty by occupying the entire field.

[Brett v. Great Am. Recreation, 144 N.J. 479, 502 (1996) (internal citations omitted).]

On appeal, Brownlee contends that the judge "committed error in holding that New Jersey's ski statute sets forth the standard of care applicable to claims between skiers." We disagree and concur with Judge McGovern that this argument is without merit. We concur with the judge's analysis and note that although the main legislative intent was to define the responsibilities of skier and ski area operations towards each other, the Legislature also intended to create a standard of conduct for skiers towards other skiers. N.J.S.A. 5:13-4 provides in pertinent part:

Duties of skiers

a. Skiers shall conduct themselves within the limits of their individual ability and shall not act in a manner that may contribute to the injury of themselves or any other person.

b. No skier shall:

....

(4) Knowingly engage in any act or activity by his skiing or frolicking which injures other skiers while such other skiers are either descending any trail, or standing or congregating in a reasonable manner, and due diligence shall be exercised in order to avoid hitting, colliding with or injuring any other skier or invitee.

....

d. A skier shall be the sole judge of his ability to negotiate any trail, slope, or uphill track and shall not attempt to ski or otherwise traverse any trail, slope or other area which is beyond the skier's ability to negotiate.

....

g. No person on foot or on any type of sliding device shall knowingly operate said device so as to cause injury to himself or others, whether such injury results from a collision with another person or with an object.

[Ibid. (emphasis added).]

Moreover, N.J.S.A. 5:13-5 provides:

Assumption of risk of skier

A skier is deemed to have knowledge of and to assume the inherent risks of skiing, operating toboggans, sleds or similar vehicles created by weather conditions, conditions of snow, trails, slopes, other skiers, and all other inherent conditions. Each skier is assumed to know the range of his ability, and it shall be the duty of each skier to conduct himself within the limits of such ability, to maintain control of his speed and course at all times while skiing, to heed all posted warnings and to refrain from acting in a manner which may cause or contribute to the injury of himself or others.

[Ibid.; L.1979, c. 29, § 5, eff. Feb.22, 1979.]

Brownlee also contends that "there is no evidence that Brownlee breached the heightened standard of care." There are material facts in dispute regarding Brownlee's conduct. Disputes exist as to the presence of a phantom skier, and as to how and where decedent was injured. These factual disputes must be decided by the jury and summary judgment is precluded. Brill supra, 142 N.J. at 537.

Affirmed.

[1] Sunday v. Stratton Corp., 390 A.2d 398 (Vt. 1978).

DR. ENRICO BONDI, ETC. VS. CITIGROUP, INC., ET AL. A-2654-08T2

2011-12-26T14:05:00.001-08:00

DR. ENRICO BONDI, ETC. VS. CITIGROUP, INC., ET AL.           A-2654-08T2

     We affirm the order granting summary judgment in favor of Citibank that dismissed all of plaintiff's claims, except the claim that Citibank employees aided and abetted looting of corporate funds by senior corporate officers at a multi-national corporation that failed in December 2003.  In doing so, we held that the trial judge properly applied the in pari delicto affirmative defense asserted by Citibank to defeat most of plaintiff's claims.  Following trial, the jury returned a verdict in favor of Citibank on the looting claim.

     We also affirmed a series of other pre-trial, trial, and post-trial rulings and affirmed the $431,318,824.84 judgment in favor of defendant-counterclaimant Citibank.  12-22-11

IN THE MATTER OF DANIEL RODRIGUEZ // IN THE MATTER OF DOUGLAS TUBBY A-2616-10T1/A-2706-10T1

2011-12-26T14:02:00.000-08:00

IN THE MATTER OF DANIEL RODRIGUEZ // IN THE MATTER OF           DOUGLAS TUBBY

          A-2616-10T1/A-2706-10T1

     Corrections officers, who are defendants in a civil action filed by an inmate, appeal from denials of legal representation pursuant to N.J.S.A. 59:10A-2.  The Attorney General relied on disciplinary charges against the officers that had been

withdrawn and did not consider discipline that the inmate received because his disruptive conduct gave the officers reason to believe he posed a threat of imminent assault.

     Applying Prado v. State, 186 N.J. 413 (2006), we reverse because the denials are predicated upon findings of probable willful misconduct and actual malice that lack support in the record and are inconsistent with controlling legal principles.  12-20-11

THE SALT & LIGHT COMPANY, INC., ET AL. VS. WILLINGBORO TOWNSHIP ZONING BOARD OF ADJUSTMENT A-3393-10T1

2011-12-26T14:01:00.002-08:00

THE SALT & LIGHT COMPANY, INC., ET AL. VS. WILLINGBORO           TOWNSHIP ZONING BOARD OF ADJUSTMENT

A-3393-10T1

     Although the duplex for occupancy by two homeless families that plaintiff-charitable organization proposed to construct would be an inherently beneficial use, the board of adjustment did not abuse its discretion in determining that the public benefit to be derived from this use was outweighed by the detrimental effect upon the integrity of the zoning plan that would result from construction of a two-family residence in an area zoned exclusively for single-family residences.  12-19-11

K.L. VS. EVESHAM TOWNSHIP BOARD OF EDUCATION A-1771-10T3

2011-12-26T14:01:00.001-08:00

 K.L. VS. EVESHAM TOWNSHIP BOARD OF EDUCATION           A-1771-10T3

     The Open Public Records Act and the common law right of access to public records did not require disclosure at this time of notes kept by school personnel regarding incidents involving plaintiff's children because the notes were privileged under the attorney work product doctrine.  The recently-enacted Anti- Bullying Bill of Rights Act, L. 2010, c. 122, N.J.S.A. 18A:37- 13.1 to -32, did not apply to plaintiff's request or the school district's record-keeping obligations.

Plaintiff's OPRA lawsuit was the catalyst for disclosure of one document, and so, plaintiff was entitled to partial reimbursement of his attorney's fees.  The document was not disclosed only pursuant to the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, which does not have a fee-shifting provision.  12-12-11

DANIEL SCHULMANN, ET AL. VS. DIRECTOR, NEW JERSEY DIVISION, NEW JERSEY DIVISION OF TAXATION A-2089-10T3

2011-12-26T13:59:00.000-08:00

DANIEL SCHULMANN, ET AL. VS. DIRECTOR, NEW JERSEY           DIVISION, NEW JERSEY DIVISION OF TAXATION           A-2089-10T3

The taxpayer used his personal funds to pay commissions owed by two S corporations. He and his wife then deducted the commission expenses from the S corporation income that they reported on their personal income tax returns. Affirming the reported opinion of the Tax Court, we held that the taxpayer could not disregard the corporate form by taking personal deductions for paying corporate obligations. The attempted deductions also violated the rule against "cross-netting" of losses, as set forth in N.J.S.A. 54A:5-2. 12-06-11

ANIMAL PROTECTION LEAGUE OF NEW JERSEY, THE BEAR EDUCATION AND RESOURCE GROUP, ET AL. VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION("NJDEP"),

2011-12-26T13:58:00.003-08:00

ANIMAL PROTECTION LEAGUE OF NEW JERSEY, THE BEAR EDUCATION AND RESOURCE GROUP, ET AL. VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION("NJDEP"), BOB MARTIN, ET AL. A-1603-10T2

     On this appeal challenging the validity of the Comprehensive Black Bear Management Policy (CBBMP) adopted by respondent New Jersey Department of Environmental Protection, we conclude that while there may be disagreements as to available data and its interpretation, under our standard of review we defer to agency findings that are based on sufficient evidence in the record.  We further conclude that the agency findings here meet that standard.  Most important, we determine that appellants have failed to demonstrate that respondents acted arbitrarily or capriciously or in bad faith.  We further find that appellants have failed to demonstrate any procedural deficiencies supporting invalidation of the CBBMP.  Accordingly, we affirm.  12-01-11

NEW PROVIDENCE APARTMENTS CO., L.L.C. VS. MAYOR AND COUNCIL OF BOROUGH OF NEW PROVIDENCE, ET AL. A-2924-10T4

2011-12-26T13:58:00.001-08:00

 NEW PROVIDENCE APARTMENTS CO., L.L.C. VS. MAYOR AND           COUNCIL OF BOROUGH OF NEW PROVIDENCE, ET AL.           A-2924-10T4

A municipal ordinance that imposes a $100 annual fee per apartment unit for sewer service upon owners of apartment houses, but does not impose this fee upon owners of single- family houses, complies with the statutory mandate that sewer fees shall be "uniform and equitable for the same types and classes of use and service" and the equal protection guarantees of the United States and New Jersey Constitutions, because the fee is reasonable designed to reduce the gross disparity in the contributions to the costs of sewer service derived from real estate taxes paid by apartment owners and owners of single- family houses.  12-01-11

MICHAEL C. SENISCH VS. JAMES CARLINO, ET AL. A-6218-09T3

2011-12-26T13:53:00.000-08:00

MICHAEL C. SENISCH VS. JAMES CARLINO, ET AL.           A-6218-09T3

     Pursuant to the 2005 "Health Care Professional Responsibility and Reporting Enhancement Act" (colloquially called the "Cullen Act"), N.J.S.A. 26:2H-12.2c, and also pursuant to prior case law establishing a qualified immunity for truthful job references by a former employer, defendants could not be held liable in a civil lawsuit for responding to a reference request with negative information from the personnel file of plaintiff, a physician's assistant.  Defendants were not required to include in the reference plaintiff's version of the circumstances of his termination since the settlement of a prior CEPA and LAD lawsuit he brought did not include an admission of wrongdoing by defendant former employer.  12-01-11

Michael McDade, et al. v. Rodolfo Siazon, et al. (067086; A-59-10)

2011-12-26T13:52:00.002-08:00

Michael McDade, et al. v. Rodolfo Siazon, et al.           (067086; A-59-10)

          In asserting a claim against the Egg Harbor Township           Municipal Utilities Authority (MUA) under the New           Jersey Tort Claims Act, plaintiff Michael McDade did           not comply with the statutory ninety-day notice of           claim requirement, N.J.S.A. 59:8-8(a), or seek relief           from that requirement by filing a notice of motion for           leave to file a late notice of claim, N.J.S.A. 59:8-9.           Because the discovery rules does not obviate the need           to comply with the statutory notice requirements, the           defendant MUA is entitled to summary judgment.  12-22-11

In the Matter of Ty Hyderally, an Attorney at Law (D-134-10; 068701)

2011-12-26T13:52:00.001-08:00

In the Matter of Ty Hyderally, an Attorney at Law           (D-134-10; 068701)

          There is no clear and convincing evidence that           Hyderally either intentionally included the New Jersey           Supreme Court Certified Attorney seal or approved its           continued presence on his website, so there is no           basis on which to find that his conduct constituted           "dishonesty, fraud, deceit or misrepresentation," in           violation of RPC  8.4 (c), and the ethics complaint           should be dismissed.  Attorneys are responsible for           monitoring the content of all communications with the           public, including their websites, so henceforth,           attorneys who are not authorized to display the           Certified Attorney seal on their websites or in other           communication but do so, will be subject to           appropriate discipline.  12-20-11

Mark Tannen v. Wendy Tannen (A-53-10; 066951)

2011-12-26T13:50:00.001-08:00

Mark Tannen v. Wendy Tannen (A-53-10; 066951)

          The judgment of the Appellate Division is affirmed           substantially for the reasons expressed in Judge           Messano’s opinion.  12-8-11

DANIEL SCHULMANN, ET AL. VS. DIRECTOR, NEW JERSEY DIVISION, NEW JERSEY DIVISION OF TAXATION A-2089-10T3

2011-12-11T19:07:00.000-08:00

DANIEL SCHULMANN, ET AL. VS. DIRECTOR, NEW JERSEY

DIVISION, NEW JERSEY DIVISION OF TAXATION

A-2089-10T3

The taxpayer used his personal funds to pay commissions

owed by two S corporations. He and his wife then deducted the

commission expenses from the S corporation income that they

reported on their personal income tax returns. Affirming the

reported opinion of the Tax Court, we held that the taxpayer

could not disregard the corporate form by taking personal

deductions for paying corporate obligations. The attempted

deductions also violated the rule against "cross-netting" of

losses, as set forth in N.J.S.A. 54A:5-2. 12-06-11

CHARLES WILLIAMS VS. NEW JERSEY DEPARTMENT OF CORRECTIONS A-5962-08T3

2011-12-11T19:06:00.002-08:00

CHARLES WILLIAMS VS. NEW JERSEY DEPARTMENT OF

CORRECTIONS

A-5962-08T3

An inmate at the Adult Diagnostic Treatment Center (ADTC)

challenged the authority of the Commissioner of the Department

of Corrections to transfer inmates to the ADTC who do not meet

the qualifications for confinement at the ADTC set forth in the

Sexual Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, more

specifically the provisions of N.J.S.A. 2C:47-3. We concluded

that the very specific provisions of the SOA, as explored at

length by the Supreme Court in In re Civil Commitment of W.X.C.,

204 N.J. 179, 196-99 (2010), cert. denied, ___ U.S. ___, 131 S.

Ct. 1702, 179 L. Ed. 2d 635 (2011), significantly limit the

Commissioner's otherwise broad discretion to assign inmates to

available institutions under N.J.S.A. 30:4-91.2, and that only

sex offenders who meet each of the three criteria set forth in

the SOA can be confined at the ADTC. Those criteria are: (1)

the offender's conduct was characterized by a pattern of

repetitive, compulsive behavior, (2) the offender is amenable to

sex offender treatment, and (3) the offender is willing to

participate in such treatment. 12-02-11

ANIMAL PROTECTION LEAGUE OF NEW JERSEY, THE BEAR EDUCATION AND RESOURCE GROUP, ET AL. VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION("NJDEP"),

2011-12-11T19:06:00.001-08:00

ANIMAL PROTECTION LEAGUE OF NEW JERSEY, THE BEAR EDUCATION

AND RESOURCE GROUP, ET AL. VS. NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION("NJDEP"), BOB MARTIN, ET AL.

A-1603-10T2

On this appeal challenging the validity of the

Comprehensive Black Bear Management Policy (CBBMP) adopted by

respondent New Jersey Department of Environmental Protection, we

conclude that while there may be disagreements as to available

data and its interpretation, under our standard of review we

defer to agency findings that are based on sufficient evidence

in the record. We further conclude that the agency findings

here meet that standard. Most important, we determine that

appellants have failed to demonstrate that respondents acted

arbitrarily or capriciously or in bad faith. We further find

that appellants have failed to demonstrate any procedural

deficiencies supporting invalidation of the CBBMP. Accordingly,

we affirm. 12-01-11

NEW PROVIDENCE APARTMENTS CO., L.L.C. VS. MAYOR AND COUNCIL OF BOROUGH OF NEW PROVIDENCE, ET AL. A-2924-10T4

2011-12-11T19:04:00.000-08:00

NEW PROVIDENCE APARTMENTS CO., L.L.C. VS. MAYOR AND

COUNCIL OF BOROUGH OF NEW PROVIDENCE, ET AL.

A-2924-10T4

A municipal ordinance that imposes a $100 annual fee per

apartment unit for sewer service upon owners of apartment

houses, but does not impose this fee upon owners of singlefamily

houses, complies with the statutory mandate that sewer

fees shall be "uniform and equitable for the same types and

classes of use and service" and the equal protection guarantees

of the United States and New Jersey Constitutions, because the

fee is reasonable designed to reduce the gross disparity in the

contributions to the costs of sewer service derived from real

estate taxes paid by apartment owners and owners of singlefamily

houses. 12-01-11

MICHAEL C. SENISCH VS. JAMES CARLINO, ET AL. A-6218-09T3

2011-12-11T19:02:00.001-08:00

MICHAEL C. SENISCH VS. JAMES CARLINO, ET AL.

A-6218-09T3

Pursuant to the 2005 "Health Care Professional

Responsibility and Reporting Enhancement Act" (colloquially

called the "Cullen Act"), N.J.S.A. 26:2H-12.2c, and also

pursuant to prior case law establishing a qualified immunity for

truthful job references by a former employer, defendants could

not be held liable in a civil lawsuit for responding to a

reference request with negative information from the personnel

file of plaintiff, a physician's assistant. Defendants were not

required to include in the reference plaintiff's version of the

circumstances of his termination since the settlement of a prior

CEPA and LAD lawsuit he brought did not include an admission of

wrongdoing by defendant former employer. 12-01-11

NEWARK MORNING LEDGER CO., PUBLISHER OF THE STARLEDGER VS. NEW JERSEY SPORTS & EXPOSITION AUTHORITY A-1810-10T1

2011-12-11T18:59:00.000-08:00

NEWARK MORNING LEDGER CO., PUBLISHER OF THE STARLEDGER

VS. NEW JERSEY SPORTS & EXPOSITION AUTHORITY

A-1810-10T1

We are asked to examine the scope of certain exemptions

from the disclosure requirements set forth in the Open Public

Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. We conclude

disclosure of the terms of the licensing agreements for use of

the IZOD Center, a state-owned facility, is mandated by OPRA.

The redacted terms relating to the use of the arena do not fall

within the scope of "trade secrets" or "proprietary commercial

or financial information" as used in N.J.S.A. 47:1A-1.1.

Further, disclosure of the details regarding the licensing fees

and other remunerative arrangements would not afford an

advantage to other venues competing for bookings because they

are widely known among those involved in this branch of the

entertainment industry, defeating defendant's claims of

confidentiality. 11-30-11

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES V. T.I., IN THE MATTER OF THE GUARDIANSHIP OF S.L.M. A-2850-10T3

2011-12-11T18:54:00.001-08:00

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES V.

T.I., IN THE MATTER OF THE GUARDIANSHIP OF S.L.M.

A-2850-10T3

In this appeal from an order terminating parental rights,

we are asked to consider the definition of "feasible" under the

Kinship Legal Guardianship (KLG) statute, N.J.S.A. 3B:12A-1 to -

7. We conclude that, when a caregiver in a case brought by the

Division of Youth and Family Services (DYFS) unequivocally

asserts a desire to adopt, the finding required for a KLG that

"adoption of the child is neither feasible nor likely" cannot be

met. 11-28-11

IN THE MATTER OF THE NOVEMBER 2, 2010, ELECTION FOR THE OFFICE OF MAYOR IN THE BOROUGH OF SOUTH AMBOY, MIDDLESEX COUNTY, NEW JERSEY A-2499-10T1

2011-12-11T18:53:00.000-08:00

IN THE MATTER OF THE NOVEMBER 2, 2010, ELECTION FOR

THE OFFICE OF MAYOR IN THE BOROUGH OF SOUTH AMBOY,

MIDDLESEX COUNTY, NEW JERSEY

A-2499-10T1

This case considers an election contest pursuant to

N.J.S.A. 19:29-1 and addresses, among other things, issues of

domicile and late amendments to petitions under N.J.S.A. 19:29-

5. Further, we address the requirements for voter registration

when applying for driver's license renewal at the Division of

Motor Vehicles under N.J.S.A. 19:31-6(b) and N.J.S.A. 39:2-3.2.

We hold that citizens who are accorded a voter registration

opportunity when obtaining or renewing a driver's license must

complete the voter registration application in order to become a

registered voter. 11-23-11

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. I.S. IN THE MATTER OF N.S. AND S.S. A-5793-09T3

2011-12-11T18:52:00.000-08:00

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS.

I.S.

IN THE MATTER OF N.S. AND S.S.

A-5793-09T3

We clarify our earlier decision in New Jersey Division of

Youth and Family Services v. I.S., 422 N.J. Super. 52 (App. Div.

2011). We state that our reference to the trial judge's

finding, based upon clear and convincing evidence, that I.S. was

unable to care for her daughters, was illustrative of the

quality of proof presented rather than our alteration of the

preponderance of the evidence standard of proof governing abuse

or neglect proceedings under Title 9.

We also clarify that proceedings under Title 30 are

governed by the preponderance of the evidence standard of proof,

except where the Division seeks an order terminating parental

rights. In such cases, the Division is required to prove that

termination is in the best interests of the child by clear and

convincing evidence. 11-23-11

KANE PROPERTIES, L.L.C. VS. CITY OF HOBOKKEN, ET AL. A-3903-10T4

2011-11-19T19:42:00.001-08:00

KANE PROPERTIES, L.L.C. VS. CITY OF HOBOKKEN, ET AL.

A-3903-10T4 11-16-11

Plaintiff, a developer, obtained variance relief from the

Hoboken Board of Adjustment, but that relief was largely

overturned on the objector's appeal to the Hoboken City Council.

Shortly after the Board issued its decision granting the

variances, the objector's attorney became the Hoboken

Corporation Counsel. Despite having recused himself, the

attorney participated, albeit to a limited extent, in the appeal

proceedings before the Council. On the facts presented, we held

that even that limited degree of participation tainted the

Council's decision, requiring a remand to the Council and

reconsideration of the appeal ab initio.

ROCKAWAY SHOPRITE ASSOCIATES, INC. VS. CITY OF LINDEN AND COUNCIL OF THE CITY OF LINDEN, ET AL. A-1345-10T4

2011-11-19T19:41:00.000-08:00

ROCKAWAY SHOPRITE ASSOCIATES, INC. VS. CITY OF LINDEN

AND COUNCIL OF THE CITY OF LINDEN, ET AL.

A-1345-10T4 11-14-11

A public notice of a rezoning ordinance purporting to

effect a substantial alteration in the character of a district

by creating entirely new zones with different uses, that merely

advises the zoning is being amended as to properties identified

by common name and lot and block number, is legally deficient

under N.J.S.A. 40:49-2.1 because it fails to apprise the

interested public of what exactly is being proposed.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. D.P. AND O.B. IN THE MATTER OF V.B. A-4087-10T4

2011-11-19T19:40:00.001-08:00

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS.

D.P. AND O.B. IN THE MATTER OF V.B.

A-4087-10T4 11-03-11

We reviewed resource parents' appeal of an order denying

their motion to intervene in a best interests hearing, which

considered whether to remove the twenty-month old child from the

resource home, her primary home since birth, or to place her

with a relative. On appeal, the resource parents assert the

trial court erroneously denied intervention, disregarding their

status as "indispensible parties" and their standing as the

child's "psychological parents."

We affirmed, concluding the right to notice of proceedings

and to inform the court granted to resource parents by the

Legislature in N.J.S.A. 9:6-8.19a, does not impart a legal

interest or an expectation to engage experts, demand discovery,

appear in the action, or cross-examine witnesses. We are

convinced the limited and temporary character of foster care

remains the legislative policy of this State. The trial court

fully abided all statutory provisions governing a resource

parent's participation in litigation involving a child entrusted

to their care by the Division, granting the resource parents all

process they were due.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. H.P AND V.P. IN THE MATTER OF H.P., JR., A.P. AND A.P. A-0642-10T1

2011-10-27T16:06:00.001-07:00

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. H.P AND V.P.

IN THE MATTER OF H.P., JR., A.P. AND A.P. A-0642-10T1

Defendant appealed from an order that concluded he had abused or neglected his three children. The finding was rendered by the judge's consideration only of testimony taken at a hearing conducted the day the complaint was filed, at a time when defendant was present but not represented by counsel.

The court held that defendant's claim that the record considered when the finding of abuse/neglect was made was inadequate because he was not represented when the testimony was taken lacked merit because defendant was represented when he consented to the judge's reliance on that earlier testimony. The court reversed and remanded, however, because the judge made a finding of abuse/neglect by using the clear and convincing standard without providing defendant advance notice of that standard's use. In addition, the judge's findings consisted only of a summary of the testimony followed by a conclusion parroting the requirements of N.J.S.A. 9:6-8.21 without credibility determinations or an analysis of what the judge found had actually occurred. Absent greater clarity regarding this and other factual circumstances, the court was unable to conclude that the evidence was sufficient to meet the applicable preponderance standard even though the judge felt the higher clear and convincing burden had been met. 10-27-11

SUSAN D'ALESSANDRO VS. NORMAN & JUDITH HARTZEL, ET AL. A-3736-09T3

2011-10-27T16:04:00.000-07:00

SUSAN D'ALESSANDRO VS. NORMAN & JUDITH HARTZEL, ET AL. A-3736-09T3

We granted summary judgment dismissal of plaintiff's negligence suit against the owner of short-term vacation rental property where plaintiff failed to offer expert proof that the condition of which she complained was dangerous or involved an unreasonable risk of physical harm to visitors, and where, in any event, the record indisputably demonstrated she knew or had reason to know of the claimed risk involved and, conversely, defendant had no reason to expect that plaintiff would not discover the obvious condition. 10-27-11

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. J.C. IN THE MATTER OF E.C. A-1269-10T4

2011-10-27T16:03:00.000-07:00

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. J.C. IN THE MATTER OF E.C.

A-1269-10T4

Although we determined the appeal by defendant mother was moot, we reviewed the procedural requirements attached to protective services litigation proceeding pursuant to N.J.S.A. 30:4C-12, following the Division's dismissal of an action under Title Nine alleging abuse and neglect. 10-26-11

PRINCETON HEALTHCARE SYSTEM VS. NETSMART NEW YORK INC. A-3533-10T4

2011-10-22T08:39:00.001-07:00

PRINCETON HEALTHCARE SYSTEM VS. NETSMART NEW YORK INC. A-3533-10T4

A negotiated contract between corporations for the installation and implementation of a complex computer software system does not constitute a contract for the "sale of merchandise" that can provide the basis for a claim under the Consumer Fraud Act. 10-21-11

MINDY JACOBSON, ET AL. VS. UNITED STATES OF AMERICA ET AL. A-1605-10T1

2011-10-22T08:34:00.001-07:00

MINDY JACOBSON, ET AL. VS. UNITED STATES OF AMERICA ET AL.

A-1605-10T1

We hold that the United States enjoys sovereign immunity from liability for damages arising from the Social Security Administration's failure to withhold disability benefits payments pursuant to a state child support garnishment order.

The Law Division granted summary judgment in favor of plaintiff, who sued individually and on behalf of her minor daughter, for whom child support was awarded, ordering the federal government to pay them compensatory damages, pre- judgment interest, and counsel fees and costs. We reverse and hold that plaintiff's claim is barred by sovereign immunity under 42 U.S.C.A. § 659. 10-18-11

LORRAINE GORMLEY VS. LATANY WOOD-EL, ET AL. A-3894-09T3

2011-10-22T08:33:00.002-07:00

LORRAINE GORMLEY VS. LATANY WOOD-EL, ET AL. A-3894-09T3

Defendants appeal the interlocutory order denying their summary judgment motion seeking, on the basis of qualified immunity, dismissal of plaintiff's civil rights complaint. Plaintiff, an attorney, claimed defendants violated her substantive due process right under the Fourteenth Amendmentwhen they created and imposed serious risks of harm to her as she met with her client, a mental patient confined at Ancora. Plaintiff's client physically attacked her during the course of that meeting. The motion judge ruled whether defendants are entitled to qualified immunity is a question of fact for the trier of fact. We reversed, holding that the determination of whether defendants are entitled to qualified immunity is a question of law for the court.

We additionally held that the facts, as alleged, established a prima facie case of a state-created danger theory of liability under the Fourteenth Amendment, but nonetheless

concluded the right plaintiff

10-17-11

defendants were entitled to qualified immunity because asserted was not clearly established at the time was attacked. 10-18-11

REGINA BASKETT, ET AL. VS. KWOKLEUNG CHEUNG A-0755-10T4

2011-10-22T08:33:00.001-07:00

REGINA BASKETT, ET AL. VS. KWOKLEUNG CHEUNG A-0755-10T4

In this appeal we address the 2008 amendments to Rule 1:13- 7. We hold that in single-defendant cases the standard for reinstatement of a complaint is good cause. In multi-defendant cases, reinstatement within ninety days of the prior dismissal is permitted on a showing of good cause, but thereafter a party must demonstrate exceptional circumstances to reinstate a complaint. Because this case involves only a single defendant, the standard is good cause, which we conclude was adequately demonstrated by the motion record in the Law Division.

STATE OF NEW JERSEY, ET AL. VS. CORRECTIONAL MEDICAL SERVICES, INC., ET AL. A-5575-09T2

2011-10-22T08:31:00.002-07:00

STATE OF NEW JERSEY, ET AL. VS. CORRECTIONAL MEDICAL SERVICES, INC., ET AL.

A-5575-09T2

We conclude that the New Jersey False Claims Act, N.J.S.A. 1A:32C-1 to -15 and N.J.S.A. 2A32C-17 to -18, is not retroactively applicable to conduct prior to the Act's effective date, which was March 13, 2008. 10-11-11

ESTATE OF ALVINA TAYLOR VS. DIRECTOR, DIVISION OF TAXATION A-3501-09T3

2011-10-22T08:31:00.001-07:00

ESTATE OF ALVINA TAYLOR VS. DIRECTOR, DIVISION OF TAXATION

A-3501-09T3

In this appeal, we affirm the decision of the Tax Court, published at 25 N.J. Tax 398 (Tax 2010), granting the Director, Division of Taxation, summary judgment dismissing the Estate's complaint with prejudice and denying an inheritance tax refund. In doing so, we agree with the Director's and Tax Court'sdecision that the three-year limitation on requesting inheritance tax overpayment refunds, set by N.J.S.A. 54:35-10, is enforceable; and the Square Corners Doctrine did not apply to the facts of this case so as to preclude application of N.J.S.A. 54:35-10. 10-6-11

ADVANCE HOUSING, INC., ET AL. VS. TOWNSHIP OF TEANECK, ET AL. A-0728-09T3

2011-10-22T08:30:00.000-07:00

ADVANCE HOUSING, INC., ET AL. VS. TOWNSHIP OF TEANECK, ET AL.

A-0728-09T3

We reversed the Tax Court's denial of real property tax exemptions to charitable organizations which provide housing and supportive services to individuals with psychiatric disabilities. In interpreting N.J.S.A. 54:4-3.6, we determine that the motion judge erred in denying the exemptions on the basis that supportive services were also provided to residents of other housing and that the absence of a requirement that residents receive supportive services was not determinative when there was no issue of fact that all residents in fact participated in the services offered, which were integral to their ability to live independently in the housing provided. 10-4-11

MIDLAND FUNDING, LLC VS. ROSA GIAMBANCO A-1651-09T3

2011-10-22T08:29:00.001-07:00

MIDLAND FUNDING, LLC VS. ROSA GIAMBANCO A-1651-09T3

In this appeal, we review a consent judgment in which the judgment-creditor waived notice under Rule 4:59-1(d) in the event of default upon the conditions of settlement incorporated into the consent judgment. The Law Division judge found certain provisions of the consent judgment contrary to public policy and struck the contrary provisions before otherwise approving the consent judgment.

We held that such consent judgments are not contrary to public policy, provided the judgment-debtor's waiver of notice under Rule 4:59-1(d) is knowing and informed. Because the proposed consent judgment was deficient in that it failed to advise the judgment-debtor of the nature and consequences of the waiver, we concluded the Law Division judge properly rejected the order as proposed. We additionally held where a court rejects the terms of a consent judgment, it may not, absent concurrence by all parties, strike the offending provisions and then approve the consent judgment as modified by the court. Rather, we concluded the court must return the matter to its pre-settlement status. 10-3-11

JERALD D. ALBRECHT VS. CORRECTIONAL MEDICAL SERVICES, ET AL. A-0605-10T4

2011-10-22T08:25:00.000-07:00

JERALD D. ALBRECHT VS. CORRECTIONAL MEDICAL SERVICES, ET AL.

A-0605-10T4

We hold that the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29 only applies to health care facilities that have been duly "licensed as" such by the Department of Health and Senior Services. N.J.S.A. 2A:53A-26(j). Additionally, where a question is raised about the status of a defendant in a malpractice action as a licensed person or health care facility and demands production of a license, the person or entity seeking a dismissal for failure to provide an affidavit of merit pursuant to N.J.S.A. 2A:53A-29 must submit competent evidential proof of its licensure. Finally, we reject the claim of Correctional Medical Services that Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, 416 N.J. Super. 1, 26-27 (App. Div. 2010), and Nagim v. N.J. Dep't of Transit, 369 N.J. Super. 103, 109 (Law Div. 2003), should be extended to it because it has not established that it is a professional corporation whose shareholders are all licensed professionals. 09-30-11

SAMUEL TORTORICE, ET AL. VS. LYNNE VANARTSDALEN A-4260-09T1

2011-10-22T08:24:00.001-07:00

SAMUEL TORTORICE, ET AL. VS. LYNNE VANARTSDALEN A-4260-09T1

This visitation dispute arises between plaintiffs, the child's paternal grandparents, and defendant, the child's maternal grandmother. Because a fit parent has a fundamental right to autonomy in child-rearing decisions, a grandparent who seeks a visitation order must show that visitation is necessary to avoid harm to the child. Defendant argues that because she is the child's "psychological parent," she enjoys the same right to autonomy and consequently, plaintiffs must satisfy an avoidance of harm standard before a visitation order may be entered. We hold that the status of "psychological parent" does not afford defendant such constitutionally mandated autonomy, that a best interest analysis applies to this dispute, and affirm the order granting visitation to plaintiffs. 09-30-11

ELIZABETH TYMCZYSZYN VS. COLUMBUS GARDENS, ET AL. A-3544-09T4

2011-10-22T08:20:00.000-07:00

ELIZABETH TYMCZYSZYN VS. COLUMBUS GARDENS, ET AL. A-3544-09T4

Plaintiff slipped on ice and fell on the sidewalk abutting a multi-unit residential property owned and operated by the Hoboken Housing Authority. The trial court granted summary judgment to the Housing Authority. We reverse because plaintiff presented sufficient evidence to survive summary judgment under N.J.S.A. 59:4-2(a), establishing that the manner in which theHousing Authority removed snow and ice from the area in question could have created the dangerous condition that caused plaintiff's injury. In the alternative we find that, under N.J.S.A. 59:4-2(b), the Housing Authority was constructively on notice of the dangerous condition.

Applying Bligen v. Jersey City Housing Authority, 131 N.J. 129 (1993), we also hold the Housing Authority is not entitled to invoke the weather condition immunity in N.J.S.A. 59:4-7, or the common law immunity for snow-related activities under Miehl v. Darpino, 53 N.J. 49, 54 (1968). 09-30-11

BERTHA BUENO VS. BOARD OF TRUSTEES, ET AL. A-1690-09T2

2011-10-22T08:17:00.000-07:00

BERTHA BUENO VS. BOARD OF TRUSTEES, ET AL. A-1690-09T2

We determined that appellant was entitled to a service retirement allowance retroactive to the effective date she sought a disability retirement allowance because regulation in effect at the time of her initial application did not prohibit her from changing her application pursuant to N.J.A.C. 17:3- 6.3(a) to one for a service retirement allowance while her petition for certification following our affirmance of the denial of a disability retirement allowance was still pending. The Board's practice of limiting such a conversion to the thirty-day period following its denial of a disability retirement allowance constituted a rule under Metromedia, Inc. v. Director, Division of Taxation, 97 N.J. 33, 331-32 (1984), that was not promulgated in accordance with the specific rulemaking procedures of the Administrative Procedures Act, N.J.S.A. 52:14B-1 to -15. 09-29-11

LORETTA DEBOARD VS. WYETH, INC., ET AL. DORA BAILEY, ET AL. VS. WYETH, INC., ET AL. A-6230-07T1;A-6251-07T1

2011-10-22T08:16:00.000-07:00

LORETTA DEBOARD VS. WYETH, INC., ET AL. DORA BAILEY, ET AL. VS. WYETH, INC., ET AL. A-6230-07T1;A-6251-07T1 (CONSOLIDATED)

We affirm the orders of summary judgment entered Jamie Happas dismissing plaintiff's product liability claims arising from utilization of hormone replacement therapy, relying in our decision on the comprehensive opinion of Judge Happas, which will be published simultaneously. In that opinion, Judge Happas properly declined to extend our reasoning in McDarby v. Merck & Co., Inc., 401 N.J. Super. 10 (App. Div. 2008), appeal dismissed, 200 N.J. 282 (2009), to permit plaintiffs to overcome the presumption of the adequacy of FDA-approved warnings by demonstrating that further testing, if voluntarily undertaken, would have disclosed an increased risk from taking the drugs at issue. 09-29-11

GEORGE C. RILEY VS. NEW JERSEY STATE PAROLE BOARD A-1004-09T1

2011-09-30T06:13:00.000-07:00

GEORGE C. RILEY VS. NEW JERSEY STATE PAROLE BOARD A-1004-09T1

Retroactive application of the Sex Offender Monitoring Act to persons who committed sex offenses before its enactment violates the Ex Post Facto Clauses of the United States and New Jersey Constitutions. Dissent by Judge Parrillo. 9-22-11

TADEUSZ JATCZYSZYN VS. MARCAL PAPER MILLS, INC., ET AL. A-0938-09T1

2011-09-19T14:01:00.001-07:00

In this product liability action, the trial court granted defendants' summary judgment motion and dismissed plaintiff's case after excluding plaintiff's expert report as a net opinion. We reverse because the deficiency in the expert's report was caused by the trial court's error in denying plaintiff the 450 days of discovery he is entitled to receive under Track III. R. 4:24-1(a).

Initially filed in the Law Division, the case was temporally removed to the United States District Court by one of the named defendants. The federal court thereafter granted plaintiff's motion to remand the case to the Law Division. Under the facts presented here, the Law Division erred by not tolling the running of the discovery period under Track III during the time the case was under the exclusive jurisdiction of the federal court. 9-09-11

DONALD J. TRUMP VS. TIMOTHY L. O'BRIEN, ET AL. A-6141-08T3

2011-09-19T14:00:00.000-07:00

We affirm the trial court's order of summary judgment in favor of defendants Timothy L. O'Brien, the author of the book TrumpNation, The Art of Being The Donald, and his publishers, determining that Trump failed to demonstrate by clear and convincing evidence that O'Brien acted with actual malice when he reported that three unnamed sources had estimated Trump's net worth as between $150 million and $250 million, not the $5 to $6 billion that Trump claimed. In doing so, we focus principally on when an inference of actual malice may arise when an allegedly false report is published solely in reliance on confidential sources. 9-07-11

AXA AND EDUARDO KIEFFER VS. HIGH POINT INSURANCE COMPANY TAMESHA BROWN VS. FIRST TRENTON INDEMNITY COMPANY SANDRA KOZUSKO VS. NEW JERSEY MANUFACTURER

2011-09-19T13:59:00.001-07:00

In these consolidated appeals, plaintiffs challenge provisions in their respective auto insurance policies excluding coverage for the diminution in the value of their autos damaged as a result of vehicular mishaps. Plaintiffs claim the exclusion provisions are ambiguous, contrary to the reasonable expectations of insureds, unconscionable, and also contrary to public policy.

We conclude the exclusion provisions are specific, plain, and clear, and provide no basis for plaintiffs to reasonably expect that diminution-in-value coverage is included in the policies. Additionally, we hold that exclusion of diminution- in-value coverage is not contrary to public policy. 8-30-11

IN THE MATTER OF SUZANNE HESS A-2408-09T1

2011-09-19T13:58:00.001-07:00

This case involved a public employee who appealed from the final decision of the Board of Trustees of the Public Employees' Retirement System, which denied her application for deferred retirement benefits pursuant to N.J.S.A. 43:15A-38. We determined that the Board erred in ruling that appellant'sdeferred retirement benefits were forfeited as a result of her conviction of two counts of assault by auto. We conclude that where the removal from employment for cause is based on charges of misconduct or delinquency not related to the employee's official duties, the public employee is entitled to his or her vested deferred retirement allowance. 8-30-11

CECELIA MAVICA INGRAHAM VS. ORTHO-McNEIL PHARMACEUTICAL, ET AL. A-2216-10T2

2011-09-19T13:57:00.001-07:00

Although the employment relationship is a factor to be considered, Taylor v. Metzger, 152 N.J. 490, 511 (1998), the elements of proof on a claim of intentional infliction of emotional distress, in accordance with Buckley v. Trenton Saving Fund Society, 111 N.J. 355, 366 (1988), are not altered by the "power dynamics of the workplace." Plaintiff's evidence that defendant supervisor directed her to remove pictures and ballet slippers of her deceased teenage daughter from her cubicle at work, and that she not talk about her daughter to co-workers, did not rise to the level of extreme and outrageous conduct, "to be regarded as atrocious, and utterly intolerable in a civilized community." Also, plaintiff's evidence was not sufficient to prove that the employer acted intentionally or recklessly to cause her emotional distress. 8-25-11

ALFRED HEHRE VS. ROBERT DEMARCO, JR., ET AL A-2812-10T4

2011-09-19T13:53:00.002-07:00

Plaintiff was injured in a car accident while being driven to a school-sponsored track meet by a fellow student-athlete. He sued the track coach, Holy Spirit High School, and the Catholic diocese of Camden, claiming these defendants failed to provide him with a safe means of transportation to the school- sponsored event and, under principles of agency, were vicariously liable for the driver's negligence.

By leave granted from the trial court's denial of defendants' motion for summary judgment based on the Charitable Immunity Act, we hold that the exemption to immunity provided in N.J.S.A. 2A:53A-7(c)(2) applies only to a "trustee, director, officer, employee, agent, servant or volunteer" of a charitable entity who causes "damage as the result of the negligent operation of a motor vehicle." By its plain and clear language, N.J.S.A. 2A:53A-7(c)(2) does not vitiate the immunity otherwise granted by the Legislature in N.J.S.A. 2A:53A-7(a) to an associated charitable entity. 8-18-11

DRINKLER BIDDLE & REATH LLP VS. NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF LAW A-2387-09T3

2011-09-19T13:53:00.001-07:00

In this appeal, plaintiff Drinker Biddle & Reath LLP sought access to unfiled discovery (the deposition transcripts of three experts) in an environmental lawsuit brought by the New Jersey Department of Environmental Protection against ExxonMobil Corp. pursuant to OPRA. We hold that N.J.S.A. 47:1A-9b exempts unfiled discovery from public disclosure. However, we reverse and remand for the trial court to conduct the appropriate balancing test to determine whether the transcripts are accessible under the common-law right-of-access. 8-18-11

SENTINEL INSURANCE COMPANY, LTD. VS. EARTHWORKS LANDSCAPE CONSTRUCTION, L.L.C., ET AL. A-0748-10T1

2011-09-19T13:52:00.002-07:00

This case involved a declaratory judgment action seeking to void a workers' compensation insurance policy on the grounds of misrepresentation. We determined that the Law Division judge did not err in dismissing the complaint without prejudice and transferring the issue to the Division of Workers' Compensation for determination by it in connection with the adjudication of the compensation claim. 8-16-11

IN RE ADOPTION OF HIGHLANDS REGIONAL MASTER PLAN A-1054-08T1

2011-09-19T13:52:00.001-07:00

The Highlands Act authorizes the Highlands Council to adopt a transfer of development rights program for the Highlands Region that does not strictly conform with the provisions of the State Transfer of Development Rights Act. 8-15-11

IN RE HIGHLANDS MASTER PLAN, EXECUTIVE ORDER 114, ETC. A-1026-08T1

2011-09-19T13:50:00.001-07:00

The Highlands Council was not required to follow the rule- making procedures of the APA in adopting the regional master plan for the Highlands Region. The Council on Affordable Housing violated the APA by adopting a resolution and accompanying "Guidance document" that substantially changed the affordable housing obligations of municipalities in the Highlands Region without complying with the rule-making procedures of the APA. 8-15-11

MARTIN O'BOYLE VS. DISTRICT I ETHICS COMMITTEE, ET AL. A-4599-09T4

2011-09-19T13:49:00.000-07:00

Rule 1:20-3(h) provides that in cases where a grievance that was found by the district ethics committee to allege unethical behavior was docketed and dismissed following an investigation, a grievant may appeal that decision to the Disciplinary Review Board. In contrast, Rule 1:20-3(e)(3) allows the secretary of a district ethics committee to decline to docket a grievance against an attorney which the secretary, with the concurrence of a public member, has determined fails to allege conduct violative of the Rules of Professional Conduct. The issue presented in this appeal is whether Rule l:20-3(e)(6), which precludes an appeal of an undocketed grievance, violates a grievant's right to due process or equal protection of the laws. As the plaintiff-grievant fails to assert a viable constitutional basis for his challenge, we affirm the Law Division's dismissal of his complaint. 08-12-11

Sheila Aronberg, etc., et al. v. Wendell Tolbert, et al. (A-9-10; 066414)

2011-09-19T13:47:00.002-07:00

When an uninsured motorist’s cause of action is barred by N.J.S.A. 39:6A-4.5(a), an heir has no right of recovery under the Wrongful Death Act, N.J.S.A. 2A:31- 1 to -6.

Blanca Gonzalez v. Wilshire Credit Corporation, et al. (A-99-09; 065564)

2011-09-19T13:47:00.001-07:00

The post-foreclosure-judgment agreements in this case constitute a stand-alone extension of credit. In fashioning and collecting on such a loan, a lender or its servicing agent cannot use unconscionable practices in violation of the Consumer Fraud Act.

Debra Ann Lombardi v. Christopher J. Masso, et al. (A-28/29-10; 066488)

2011-09-19T13:46:00.002-07:00

Debra Ann Lombardi v. Christopher J. Masso, et al. (A-28/29-10; 066488)

In this case alleging breach of contract and fraud in a real estate transaction, the Appellate Division correctly determined that the trial court’s original summary judgment order dismissing several of the defendants was issued in error, the trial judge was well within his discretion in revisiting and vacating the interlocutory summary judgment order, and the law of the case doctrine did not apply to bar reconsideration under these circumstances.

In the Matter of Gerald M. Saluti, an Attorney at Law (D-70-10; 067548)

2011-09-19T13:46:00.001-07:00

In the Matter of Gerald M. Saluti, an Attorney at Law (D-70-10; 067548)

The action of the Supreme Court to suspend Gerald M. Saluti from the practice of law for failure to comply with fee arbitration committee determinations qualifies as an exception to the automatic stay provision of the U.S. Bankruptcy Code and Saluti is suspended from practice pending his compliance.

Fair Share Housing Center, Inc. v. N.J. State League of Municipalities (A-36-10; 066228)

2011-09-19T13:44:00.003-07:00

The League of Municipalities is a “public agency” under the Open Public Records Act and must provide access to “government record[s]” that are not subject to an exemption.

Robert Buck v. James R. Henry, M.D. (A-10-10; 065860)

2011-09-19T13:44:00.001-07:00

The case is remanded for a Ferreira conference. Buck acted in good faith in filing affidavits of merit from two different medical specialists; and if the conference had been conducted as required and the trial court found deficiencies, Buck would have had additional time to submit an affidavit that conforms to N.J.S.A. 2A:53A-41. In the future, a physician8-8-11

8-1-11

7-28-11

defending against a medical malpractice claim, who admits treating the plaintiff, must include in his answer the medical specialty, if any, in which he was involved when rendering treatment to the plaintiff.

Slip & Fall due to ice law JUAN GUTIERREZ,

2011-08-14T05:28:00.000-07:00

Slip & Fall due to ice law

JUAN GUTIERREZ,

Plaintiff-Appellant,

JEAN M. HUNTINGTON and CLIFFORD

HUNTINGTON,

Defendants/Third-Party

Plaintiffs-Respondents,

JORGE CABRERADUARTE a/k/a

JORGE CABRERA,

Third-Party Defendant.

APPELLATE DIVISION

DOCKET NO. A-0965-10T2

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

_________________________________________

Submitted July 5, 2011 - Decided

Before Judges Cuff and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Docket No.

L-5068-08.

Flores Sternick Poosikian, attorneys for

appellant (Edwin Flores, of counsel;

Joseph P. Kreoll, on the brief).

Caruso Smith Edell Picini, attorneys for

respondents (Richard D. Picini, of counsel;

Jennifer L. Bocchi, on the brief).

PER CURIAM

August 10, 2011

2 A-0965-10T2

Plaintiff Juan Gutierrez appeals from the order of the Law

Division granting defendants Jean M. and Clifford Huntington's

summary judgment motion and dismissing his personal injury cause

of action. We reverse and remand.

Plaintiff was injured when he slipped on ice and fell onto

the concrete patio abutting a single family house rented by

third-party defendant Jorge Cabrera. At the time of the

accident plaintiff was temporarily residing with Cabrera as his

guest. Plaintiff sued the Huntingtons, alleging that the

accident was caused by snow-covered ice that formed from water

that pooled around a clogged drain in a depressed section of the

patio. This drainage problem was exacerbated by the absence of

roof gutters, which permitted precipitation from the roof to

fall directly onto the patio. Plaintiff submitted a report from

an engineer who opined the conditions of the patio violated a

municipal ordinance that requires all premises to be graded to

prevent the accumulation of stagnant water.

Relying on Patton v. The Texas Co., 13 N.J. Super. 42 (App.

Div.), certif. denied, 7 N.J. 348 (1951), defendants moved for

summary judgment arguing that, as a residential landlord, they

are not liable for injuries sustained by a tenant or a tenant's

guest "unless there has been fraudulent concealment of a latent

defect." Id. at 47. In response, plaintiff urged the court to

3 A-0965-10T2

rely on the standard established in Section 358 of the

Restatement (Second) of Torts (1965), which states:

(1) A lessor of land who conceals or fails

to disclose to his lessee any condition,

whether natural or artificial, which

involves unreasonable risk of physical harm

to persons on the land, is subject to

liability to the lessee and others upon the

land with the consent of the lessee or his

sublessee for physical harm caused by the

condition after the lessee has taken

possession, if

(a) the lessee does not know or have reason

to know of the condition or the risk

involved, and

(b) the lessor knows or has reason to know

of the condition, and realizes or should

realize the risk involved, and has reason to

expect that the lessee will not discover the

condition or realize the risk.

(2) If the lessor actively conceals the

condition, the liability stated in

Subsection (1) continues until the lessee

discovers it and has reasonable opportunity

to take effective precautions against it.

Otherwise the liability continues only until

the vendee has had reasonable opportunity to

discover the condition and to take such

precautions.

Plaintiff relied on Reyes v. Egner, 404 N.J. Super. 433,

448-55 (App. Div. 2009), aff'd by equally divided court on other

grounds, 201 N.J. 417 (2010), in which this court used Section

358 to determine the duty owed by a landlord to short-term

tenants of a vacation home and their guests. The dangerous

condition in Reyes involved an elevated deck and stairs which,

4 A-0965-10T2

given the plaintiff's unfamiliarity with the residence's layout,

caused the plaintiff to fall and injure himself. Id. at 440-41.

The question before this court was whether the lessor and

the lessee had "reason to know" of a condition that "involves

unreasonable risk of physical harm." Id. at 461-62. Focusing

on the short duration of the rental, we declined to follow

Patton and held the defendant potentially liable. Ibid.

Writing for the panel, Judge Sabatino concluded that, in such

circumstances, the landowner's duties "should be defined

consistent with the precepts of Section 358" of the Restatement.

Ibid.

The short duration of the tenancy, however, was not the

only factor we considered in Reyes. Because the dangerous

condition created by the elevated deck was also a violation of

the construction codes, this factor could be considered by a

jury as "evidential if not conclusive" evidence of the

landlord's breach of the duty owed to the tenants. Id. at 458.

Here, the record shows the motion judge was sympathetic to

plaintiff's argument but considered himself bound by our

decision in Patton, which he viewed as a viable precedent even

after Reyes. The judge noted:

I would not at all be surprised if in the

next case an Appellate Court were to adopt

the full rule of the Restatement (Second)

Section 358. But they had not up to this

5 A-0965-10T2

point and the rule is enunciated and []

Patton and Szeles1 does remain the rule in

this state. They're from . . . the

Appellate Division and this Court is bound

to follow it.

The court heard and decided defendants' summary judgment

motion on September 16, 2010. Approximately eight months

thereafter, we decided Meier v. D'Ambose, 419 N.J. Super. 439

(App. Div. 2011), in which we considered "whether the ownerlandlord

of a single-family residence had a duty to the tenant

to maintain, and thus periodically inspect, the furnace to

prevent a hazardous condition." Id. at 441.

In Meier, decedent's estate and heir sued the landlord for

negligence and wrongful death, alleging the tenant died from

smoke inhalation from a fire that may have been caused by a

defective gas-fired heater located in the crawl space of the

single-family dwelling. Id. at 442. The trial court in Meier

characterized the "deteriorated flue pipe" in the furnace that

1 Szeles v. Vena, 321 N.J. Super. 601 (App. Div.), certif.

denied, 162 N.J. 129 (1999), in which the plaintiff-tenant was

injured when he fell from an exterior staircase where a brick

had come loose. Plaintiff had not noticed the loose brick, and

he had not requested that the landlord repair the steps. Id. at

603-04. Relying on Patton, the panel in Szeles held that "where

plaintiff was in exclusive possession of the premises and the

condition of the brick step was not a condition that was known

to the landlord at the inception of the lease, or brought to the

landlord's attention, there is no basis to impose tort liability

on the landlord." Id. at 608.

6 A-0965-10T2

caused the fire as a "latent defect" because the defendant had

no prior notice of its malfunction. Id. at 445.

Relying on Patton and Szeles, the trial court in Meier

granted the landlord's motion for summary judgment, holding "as

a matter of law that [the] defendant did not have a duty to make

periodic inspections of the furnace to discover any such defects

because [the tenant] was in sole possession of the premises."

Id. at 445-46. We reversed and remanded the matter for trial.

Id. at 446.

We began our premises liability analysis in Meier by

reaffirming the fact-specific, public policy principles

articulated by our Supreme Court in Hopkins v. Fox & Lazo

Realtors, 132 N.J. 426 (1993):

To determine whether the owner of property

had a duty in particular circumstances to

the injured person, a court must examine

such factors as "the relationship of the

parties, the nature of the attendant risk,

the opportunity and ability to exercise

care, and the public interest in the

proposed solution."

[Meier, supra, 419 N.J. Super. at 445,

quoting Hopkins, supra, 132 N.J. at 439.]

From this point, we reviewed the evolutionary trend in premises

liability law defining a landowner's duty consistent with the

precepts of Section 358 of the Restatement (Second) of Torts

7 A-0965-10T2

(1965). Meier, supra, 419 N.J. Super. at 446-47, citing Reyes,

supra, 404 N.J. Super. at 448-55.2

With these principles as our guide, we now return to the

question presented in this appeal. At the time of this

accident, plaintiff had been living as the "guest" of thirdparty

defendant Cabrera for approximately two months. Cabrera

allowed plaintiff to share his home rent-free while plaintiff

searched for his own place to live.

Cabrera was defendants' tenant under a written lease that

began on July 27, 2004, and continued on a month-to-month basis.

The lease contained certain "terms and conditions." Of

relevance here, paragraph 5 required Cabrera to "keep and

maintain the premises in a clean and sanitary condition;"

paragraph 10 "reserves" defendants the right to enter the

premises "for the purpose of inspection, and whenever necessary

to make repairs and alterations." At his deposition, Cabrera

testified that he had a verbal agreement with defendants through

which he was responsible for removing the snow and ice from the

property.

2 We also noted the Supreme Court's decision in Parks v. Rogers,

176 N.J. 491, 499 (2003), in which the Court looked to the

Restatement (Second) of Torts § 342 (1965), to determine a

homeowner's duty to protect an unsuspecting social guest from

dangers on the premises.

8 A-0965-10T2

Here, plaintiff argues defendants have a duty to plaintiff

to maintain the premises they rented to Cabrera, including the

concrete patio abutting the house, free from dangerous

conditions. Plaintiff further argues that defendants' duty in

this respect is independent of and notwithstanding any verbal

agreement they may have had with Cabrera.

The alleged dangerous condition here is twofold. The

first is the defective drain, which permits water to pool and

freeze when the temperatures fall below the freezing point. The

second is the lack of gutters on the roof of the dwelling, which

exacerbates the drainage problem because it allows water to cast

down in the same area. In the opinion of plaintiff's liability

expert, both of these alleged defects are violations of local

municipal laws that set certain minimum standards of maintenance

for this kind of dwelling.

In our view, these are not latent defects. Both of these

defects are structural matters that are within the exclusive

control of the landlord. The structural defects remain the

responsibility of the landlord to remediate when they create a

dangerous condition on the property. These structural defects

do not fall within day-to-day maintenance of the property

properly assumed by the tenant. Although the record suggests

that the clogged drain and absence of gutters was a long9

A-0965-10T2

standing problem, the record does not permit the motion judge to

find that the landlord had notice of the defects at or before

the time of the accident.

We are satisfied that the principles articulated in

Hopkins, Reyes, and Meier constitute the appropriate standard to

determine defendants' duty to plaintiff under these

circumstances. As we held in Meier:

The lessor . . . has a non-delegable duty of

care to third parties to avoid a hazardous

condition of his property. Whatever may be

the terms of a lease and the duties of

lessor and lessee as to each other, the

lessor cannot by virtue of the lease release

himself from potential liability to third

parties. In addition, the lessor benefits

in the long-term from maintaining the

property. He collects rent to fund

maintenance of the property, and he should

have the incentive and means to arrange

inspections to prevent hazardous conditions.

[Meier, supra, 419 N.J. Super. at 450

(internal citation omitted).]

Our standard of review from a trial court's order granting

a defendant summary judgment is plenary. We must independently

determine, without deference to the trial court's ruling,

whether disputed issues of fact exist for determination by a

jury. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.

Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608

(1998). We must "consider whether the competent evidential

materials presented, when viewed in the light most favorable to

10 A-0965-10T2

the non-moving party, are sufficient to permit a rational

factfinder to resolve the alleged disputed issue in favor of the

non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995); R. 4:46-2(c).

Plaintiff's expert's report contains sufficient evidence to

create a jury question as to whether defendants should be held

liable for plaintiff's injuries. By means of any reasonable

inspection, defendant should have discovered how the defective

drain, coupled with the absence of roof gutters, were causing

water to pool in the patio. Under Meier, defendants have a duty

to inspect this property to ensure it is free of these dangerous

conditions. If a jury were to find defendants negligently

failed to inspect and thereafter correct this dangerous

condition on the property, it could then determine whether such

negligence was a proximate cause of plaintiff's injuries and if

so, to what extent plaintiff's own conduct, as compared with

defendants' negligence, caused him to fall.

Reversed and remanded. We do not retain jurisdiction.

O'BOYLE VS. DISTRICT I ETHICS COMMITTEE A-4599-09T4 08-12-11

2011-08-12T12:46:00.000-07:00

08-12-11 MARTIN O'BOYLE VS. DISTRICT I ETHICS COMMITTEE, ET AL. A-4599-09T4

NAVILLUS GROUP VS. ACCUTHERM INCORPORATED A-4754-08T1;A-0568-09T1(CONSOLIDATED) 08-11-11

2011-08-12T12:37:00.000-07:00

08-11-11 NAVILLUS GROUP, ET AL. VS. ACCUTHERM INCORPORATED, ET AL.

A-4754-08T1;A-0568-09T1(CONSOLIDATED)

The Industrial Site Recovery Act does not establish an alternative ground upon which a party who has obtained a final judgment in a tax foreclosure action under the Tax Sale Law may secure relief from the judgment based on environmental contamination of the site; the Tax Sale Law provides the exclusive grounds upon which a tax foreclosure judgment may be vacated.

SMITH VS. JERSEY CENTRAL POWER AND LIGHT COMPANY A-2801-08T2 08-10-11

2011-08-12T12:29:00.000-07:00

08-10-11 GARY SMITH, ET AL. VS. JERSEY CENTRAL POWER & LIGHT COMPANY, ET AL.

A-2801-08T2

The determination whether an electric utility's intermittent interference with a property owner's use of his property is so substantial that a taking has occurred depends on all the circumstances of that interference, which requires development of a full record and fact finding. Therefore, a jury's finding that the utility's distribution of electricity to a property owner's home, which caused stray current that interfered with the use of his property, constituted a nuisance,

1:20-3(h) provides that in cases where a grievanceis insufficient to support a judgment on an inverse condemnation claim.

A showing of negligence is not an essential element of the tort of nuisance. Therefore, an electric utility may be found liable on the basis of nuisance to a property owner for interfering with the property owner's use of his property due to stray current even though the utility exercised due care in its efforts to control the stray current.

DEUTSCHE BANK NATIONAL TRUST COMPANY VS. LAWRENCE MITCHELL A-4925-09T3

2011-08-12T12:25:00.000-07:00

08-09-11 DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC. VS. CONSTANCE LAWRENCE MITCHELL, ET AL.

A-4925-09T3

The grant of summary judgment to plaintiff in this foreclosure case involving a "mortgage rescue scam" was appealed by the homeowner victim after a sheriff's sale back to plaintiff. Nonetheless, given the importance of the issue, we reverse the trial court's decision that, although plaintiff filed its original complaint before being assigned the mortgage, it acquired standing by filing an amended complaint after the assignment. Holding that either an assignment or possession of the note prior to the filing of the complaint is required to obtain standing to foreclose, we remand to the trial court to allow plaintiff to submit proof that it had possession of the note before filing the original complaint.

WILLINGBORO MALL VS. 240/242 FRANKLIN AVENUE A-4598-09T2 08-09-11

2011-08-12T12:22:00.000-07:00

08-09-11 WILLINGBORO MALL, LTD, VS. 240/242 FRANKLIN AVENUE, L.L.C., ET AL.

A-4598-09T2

A settlement reached at a complementary dispute resolution session, such as a mediation, must be reduced to writing expeditiously, but not necessarily at the mediation session. When the mediator and the parties waive the confidentiality afforded to such proceedings, as in this case, an oral settlement agreement reached through mediation may be enforced by the court.

BANK OF NEW YORK VS. LAKS A-4221-09T3 08-08-11

2011-08-12T12:20:00.000-07:00

08-08-11 BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWALT 2004 26T1 VS. SARAH G. LAKS, ET AL A-4221-09T3

N.J.S.A. 2A:50-56(c)(11), a provision of the Fair Foreclosure Act, requires that a notice of intention to foreclose state "the name and address of the lender and the telephone number of a representative of the lender whom thedebtor may contact if the debtor disagrees with the lender's assertion that a default has occurred or the correctness of the mortgage lender's calculation of the amount required to cure default." We held that a notice of intention that does not state the name and address of the "lender" as that term is defined in the Fair Foreclosure Act, and instead only states that of the lender's mortgage servicer, is deficient. We further held that the remedy for a deficient notice of intentiondeficiency had been raised in the trial court is

where the dismissal of the foreclosure complaint without prejudice.

Department of Children and Families v. T.B. A-21-10; 066294 8-8-11

2011-08-12T12:17:00.000-07:00

8-8-11 Department of Children and Families, Division of Youth and Family Services v. T.B. (A-21-10; 066294)

Susan did not fail to “exercise a minimum degree of care” under N.J.S.A. 9:6-8.21(c)(4)(b) because her conduct did not rise to the level of gross negligence or recklessness.

In the Matter of Perskie D-75-10; 067680 8-1-11

2011-08-12T12:08:00.000-07:00

8-1-11 In the Matter of Steven P. Perskie, a Former Judge of the Superior Court (D-75-10; 067680)

By clear and convincing evidence, former Judge Steven P. Perskie’s conduct as charged in Counts I and III for the formal complaint violated Canons 1, 2A, 2B, and 3C(1) of the Code of Judicial Conduct and R. 1:12- 1(f). There is not clear and convincing evidence that respondent deliberately misled the Senate Judiciary Committee as charged in Count II. Respondent is censured.

LOPEZ V. TRI-PORT A-1654-10T2 May 5, 2011

2011-08-05T13:25:00.000-07:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1654-10T2

OSVALDO LOPEZ and AMALIA R. LOPEZ, his wife,

Plaintiffs-Appellants,

TRI-PORT DISTRIBUTION CENTER, LLC, a Delaware Limited Liability Company and AMB PROPERTY CORPORATION^¹,

Defendants-Respondents,

and

MORECOP-270 ASSOCIATES, LLC, a Maryland

Limited Liability Company; W65 BEDFORD

PARK, INC., a Nevada Corporation; FEDERAL

EXPRESS CORPORATION; and LINC FACILITY

SERVICES formerly known as Affiliated

Building Services,

Defendants.

Argued April 11, 2011 - Decided May 5, 2011

Before Judges Grall and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Union County,

Docket No. L-1204-09.

Harvey R. Pearlman argued the cause for appellants (Friedman, Kates, Pearlman & Fitzgerald, attorneys; Mr. Pearlman, on the brief).

Laurie B. Kachonick argued the cause for respondent Tri-Port Distribution Center (Connell Foley LLP, attorneys; Jeffrey W. Moryan, of counsel and on the brief; Ms. Kachonick, on the brief).

Robert D. Kretzer argued the cause for respondent AMB Property Corporation (Lamb, Kretzer, Reinman & Roselle, attorneys; Mr. Kretzer, on the brief).

PER CURIAM

Plaintiff Osvaldo Lopez, a Federal Express (FedEx) truck driver, tripped and fell in the parking lot of a FedEx truck yard in 2007. Lopez and his wife, whose claims are per quod, filed a personal injury action alleging that his accident was caused by a bar that formerly anchored a cement parking stop sticking above the pavement level. Among the defendants named by plaintiffs were Lopez's employer's landlord, Tri-Port Distribution, LLC (Tri-Port), and the landlord's property manager, AMB Property Corporation (AMB). Plaintiffs contend that Tri-Port and AMB had a duty to repair and maintain the parking lot. Finding a valid delegation of that duty to FedEx under an amended lease and sublease assigned to Tri-Port, the trial court granted summary judgment to defendants. Plaintiffs appeal.^²

The relevant facts are not disputed. Lopez fell in June 2007 and thereafter had surgery to correct an incarcerated umbilical hernia. The hazard of exposed parking-stop bars in this parking lot was not unknown. Eleven months earlier, another FedEx employee was injured when he tripped over a different exposed bar, and seven months before Lopez's accident FedEx retained a contractor to replace twenty-five parking stops and eighty-five parking-stop bars. In contrast, Tri-Port and AMB had never inspected or repaired the parking lot or the parking stops.

Plaintiffs acknowledge that under our case law, if Tri-Port and FedEx agreed that FedEx would accept full responsibility for maintaining the parking lot in a safe condition, then Tri-Port and AMB had no duty to Lopez. Geringer v. Hartz Mountain Development Corp., 388 N.J. Super. 392, 400-02 (App. Div. 2006), certif. denied, 190 N.J. 254 (2007) (holding that a commercial landlord is not negligent where a lease "unquestionably places the responsibility for . . . maintenance or repair solely upon the tenant"); McBride v. Port Auth. of N.Y. and N.J., 296 N.J. Super. 521, 522 (App. Div. 1996) (same). Because the most reasonable interpretation of the various lease agreements do assign that duty to FedEx, we agree that defendants are entitled to summary judgment as a matter of law and affirm. Brill v. Guardian Life Ins. Co. of Am.,142 N.J. 520, 540 (1995).

A main lease, an amendment of the main lease, a sublease and assignments of the leases define the parties' respective responsibilities for maintenance of the premises. The relevant transactions were completed in 2004, about three years before this accident. Tri-Port purchased the property from Elizabeth Properties Limited Partnership (Elizabeth), and at the time of the purchase Elizabeth had leased the property to W65 Bedford Park, Inc. (W65) with W65 subleasing the premises to FedEx. As subtenant under the sublease, FedEx agreed to "perform, honor and comply with each and every covenant and obligation of [W65], as tenant, under the Main Lease[]" between Elizabeth and W65 and to be bound by the main lease "as fully and to the same extent as though Subtenant were named as tenant" in that lease. Despite the broad delegation of W65's responsibilities as tenant under the main lease to FedEx, pursuant to section N-4 of the main lease W65 remained jointly and severally responsible as tenant to Elizabeth.

Through the sale and assignments, Tri-Port not only acquired all of Elizabeth's interest in the property but also all of W65's interest, which it took subject to W65's sublease to FedEx. The transaction was accomplished through assignments to Tri-Port of the main lease and the sublease and by an amendment of the main lease to which the subtenant FedEx consented.

The assignments effectively put Tri-Port in the position of landlord and tenant under the main lease and sublandlord to FedEx under the sublease. In accepting the assignment of the main lease, Tri-Port "assume[d] and agree[d] to perform the liabilities and obligations of [Elizabeth] with respect to the [Main] Lease." Additionally, through the assignment of W65's interests as tenant under the main lease and as sublandlord under W65's sublease to FedEx, Tri-Port acquired W65's "right, title and interest" in the main lease and sublease and "assume[d] and agree[d] to perform the liabilities and obligations of [W65] with respect to the Assigned Property."

In conjunction with those assignments, however, the parties modified the main lease. That amendment was executed by Elizabeth and W65 and consented to by FedEx. It expressly provides that all of its provisions will be "deemed part of the" main lease and "incorporated by reference into the Sublease [with FedEx] as if fully set forth therein."

The amendment recognizes the assignment of the lease and sublease and specifies that W65 is assigning to Tri-Port both its interest "as tenant" under the main lease and its interest "as sublandlord" under the sublease. The amendment further specifies that Tri-Port's fee and leasehold estates will not merge and that the lease and sublease will remain in full force and effect. Most importantly, the amendment clearly enumerates the responsibilities that Tri-Port is assuming. It states that Tri-Port will assume "the obligations of [Elizabeth] under the Main Lease[] and the obligations of W65 under the Sublease." Notably, the amendment does not provide for Tri-Port to assume W65's obligations under the main lease.

By executing the amendment, FedEx "consented to" the assignments and Tri-Port's description of the obligations it was assuming. FedEx also agreed to "recognize Tri-Port as the lessor under the Sublease upon all terms and conditions set forth in the Sublease," which, as noted above, obligated FedEx to "perform, honor and comply with each and every covenant and obligation of [W65], as tenant, under the Main Lease[.]"

Our review of the trial court's interpretation of the agreements allocating the duty to maintain this parking lot in a safe condition is de novo. Fastenberg v. Prudential Ins. Co., 309 N.J. Super. 415, 420 (App. Div. 1998). In interpreting the agreements, we give their terms their "usual and natural meaning," Middlesex County Sewerage Authority v. Borough of Middlesex, 74 N.J. Super. 591, 604 (Law Div. 1962), aff’d o.b., 79 N.J. Super. 24 (App. Div.), certif. denied, 40 N.J. 501 (1963), read the documents as a whole and avoid interpretations that render terms or provisions meaningless. Cumberland County Improvement Auth. v. GSP Recycling Co., 358 N.J. Super. 484, 497 (App. Div.), certif. denied, 177 N.J. 222 (2003). To the extent that the documents are ambiguous, the parties' practical interpretation of them — as reflected by their actions — is a "consideration of great weight." Anthony L. Petters Diner, Inc. v. Stellakis, 202 N.J. Super. 11, 20-21 (App. Div. 1985) (internal quotations omitted).

Plaintiffs' first argument is based on Tri-Port's obligations as landlord under the terms of the main lease. They contend Tri-Port, as assignee of the landlord's duties under the main lease, had a duty to eliminate the hazard posed by protruding parking-stop bars. We reject that claim.

Under the main lease, responsibility for keeping and maintaining the premises "in good repair [and] in a clean and safe condition" is not assigned to the landlord. It is assigned to the tenant in article G, which is entitled "REPAIRS, MAINTENANCE, AND ALTERATIONS." Section G-1 requires the tenant to "keep and maintain the PREMISES, including without limitation, all . . . parking areas . . . in all respects in good repair, in a clean and safe condition . . . subject to LANDLORD'S repair obligations hereunder, ordinary wear and tear, [and] casualty." Under section G-3, the landlord's repair obligations are limited to the roof, decking, skylights, foundation, and structural integrity of the building. Thus, with respect to the parking area, the landlord has no "repair" obligations under article G.^³

This broad assignment of responsibility for keeping and maintaining the premises to the tenant is consistent with the structure for payment of rent under the lease. Section D-2 requires the tenant to pay base rent plus operating expenses, which are defined to include taxes and ordinary maintenance such as clearing the parking area of debris, snow and ice, repairing and replacing curbing, and resurfacing, resealing and restriping the surface of the parking area.^⁴

Despite the clarity of sections G-1 and G-3 and consistent with the tenant's obligations to pay for the expense of routine maintenance, plaintiffs argue that Tri-Port as landlord has an obligation to repair the parking stops pursuant to "Article K - DAMAGE OR DESTRUCTION." Section K-1 obligates the landlord to act when "the parking area or any area thereof is damaged or destroyed." Section K-1 defines the scope of the landlord's duty to repair such damage or destruction. The landlord does not have a duty to bring the parking area into "good repair, in a clean and safe condition," as does the tenant under section G-1. Instead, the landlord's obligation is to bring the damaged area "to substantially the condition [that] existed immediately prior to such damage or destruction." The remaining sections of article K provide remedies in the form of abatement of rent or termination of the lease in the event the landlord's restoration or reconstruction limits the tenant's use and enjoyment of the premises.

Read together and in light of the rent structure, articles G and K are best understood to generally divide responsibility for the premises by distinguishing routine maintenance from restoration required in the face of significant damage caused by a single event, structural failure or the age of the landlord's improvements. Section G-1 assigns the duty of keeping and maintaining the premises in clean and safe condition to the tenant, with three exceptions: "casualty," "wear and tear" and designated structural elements of the building which the landlord must maintain under section G-3. Article K, meanwhile, addresses the landlord's duty and tenant's rights in the event of "casualty" or failure of an improvement. A "casualty" is generally understood as "[a] disastrous occurrence due to sudden, unexpected or unusual cause." Black's Law Dictionary 198 (5th ed. 1979).

Plaintiffs' interpretation of section K-1, which would require Tri-Port to do routine maintenance like replacement of dislodged parking stops, is in conflict with articles G and D, which make the tenant responsible for that work. If section K-1 is interpreted as plaintiffs suggest, then sections G-1 and D-2 have no readily discernible application.

Although we perceive no ambiguity in the main lease's assignment of responsibility for keeping and maintaining the parking lot, even if we did, the parties' conduct demonstrates that they understood that duty to be one assigned to the tenant and not the landlord. As noted above, FedEx previously arranged and paid for repair and replacement of the parking stops. If FedEx understood section K-1 to require Tri-Port to do that work, FedEx presumably would have demanded Tri-Port do it or pay for the expense of having it done. Cf. Anthony L. Petters Diner, Inc., supra, 202 N.J. Super. at 20-21 (parties to a contract "often claim more, but rarely less than they are entitled to" (internal quotations omitted)).

For all of the foregoing reasons, plaintiffs' reliance on section K-1 is misplaced.

Plaintiffs also argue that Tri-Port, as assignee of W65's interest as tenant under the main lease, had a duty to keep and maintain the parking area in a safe condition pursuant to section G-1. We reject that claim as well, because it overlooks the amendment to the main lease executed in conjunction with the assignments.

Without doubt, W65, as the tenant under the original main lease, was obligated by section G-1 to keep and maintain the parking lot and remained jointly and severally liable for that obligation despite its delegation of that duty to FedEx under the sublease. It is also true that Tri-Port accepted an assignment of W65's "right title and interest in" the main lease. But the amendment to the main lease, to which FedEx consented, made it clear that Tri-Port assumed Elizabeth's responsibility as landlord under the main lease and W65's responsibility as sublandlord under the sublease. Thus, we reject plaintiffs' contention that in agreeing to assume W65's obligations "with respect to the Assigned Property," Tri-Port assumed W65's obligations as tenant under the main lease.

Plaintiffs' claim that Tri-Port did not absolve itself of joint and several responsibility for maintaining the parking lot as tenant under the main lease lacks merit. Read with the amendment incorporated in the main lease, the most reasonable interpretation is that section N-4 of the main lease did not survive the amendment. Moreover, the performance of FedEx and Tri-Port, through its agent AMB, after the execution of these related conveyances is wholly consistent with that interpretation. Tri-Port left all maintenance in the parking lot to FedEx, and FedEx performs the inspections and work to keep and maintain it in a clean and safe condition. In contrast, Tri-Port's agent inspects nothing other than the roof and structure of the building.

In sum, the amendment to the main lease clarifies what Tri-Port meant when it agreed to take an assignment of W65's duties "with respect to" the property. Tri-Port agreed to perform the duties that W65 had to FedEx under the sublease but did not agree to perform W65's duties as tenant under the main lease. Those duties were assigned to and accepted by FedEx in the sublease, and with its consent to the amendment of the main lease, it accepted sole responsibility.

Plaintiffs' contrary reading is not only inconsistent with the most reasonable reading of the documents and the parties' subsequent performance but also contrary to any discernible business purpose the parties might have had. In interpreting agreements, courts consider the setting in which they are made and the parties' likely goals. Onderdonk v. Presbyterian Homes of N.J., 85 N.J. 171, 183-84 (1981); see Krosnowski v. Krosnowski, 22 N.J. 376, 387 (1956) (a contract is to be interpreted "in accord with . . . the probable intention of the parties" and as if the parties were practical and intent on accomplishing "an honest and straightforward" goal (internal quotations omitted)). Plaintiffs have not explained why Tri-Port and FedEx would want to have Tri-Port hold itself responsible for doing work assigned to FedEx under the sublease. Unable to conjure up a reason, we decline to strain for an interpretation that would require us to assume the parties intended that impractical result.

Having considered the arguments presented in light of the record and guiding legal principles, we conclude that neither Tri-Port nor its agent AMB had a duty to protect Lopez from the danger posed by the dislodged parking stop and exposed bar. If there was a duty breached here, it was the duty assumed by Lopez's employer, FedEx.

Affirmed.

1 Improperly pled as AMB Property, LP, a Delaware Limited Partnership.

2 All claims against all defendants have been resolved. Plaintiffs' claims against FedEx and W65 Bedford Park, Inc. were dismissed, and the trial court granted summary judgment to defendants Morecop-270 Associates and Linc Facility Services. Plaintiffs do not appeal those orders.

3 The landlord reserved a right to make repairs neglected by the tenant, but under this court's decision in McBride, supra, 295N.J. Super. at 525-527 that reservation does not make the landlord liable for the tenant's failure to repair. Plaintiffs present no argument based on the reservation of right to re-enter in the main lease.

4 The main lease is of the type that our courts have described as a "triple net" or "net-net-net" lease. See N.J. Indus. Properties v. Y.C. & V.L., Inc., 100 N.J. 432, 434 (1985).

RAMBOUGH, v. C.V. HILL REFRIGERATION A-5184-09T3 May 5, 2011

2011-08-05T11:38:00.000-07:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5184-09T3

JOYCE R. RAMBOUGH, Petitioner-Respondent, v. C.V. HILL REFRIGERATION, Respondent-Appellant.

Argued April 11, 2011 – Decided May 5, 2011

Before Judges Lisa, Sabatino and Ostrer.

On appeal from the Division of Workers' Compensation, Department of Labor, Claim Petition No. 1992-6224.

Michael Huber argued the cause for appellant (Freeman, Barton, Huber & Sacks, attorneys; Nancy S. Freeman, on the briefs).

Arthur H. Kravitz argued the cause for respondent (Stark & Stark, attorneys; Alisa C. Boll, on the brief).

PER CURIAM

This workers' compensation case returns to us after remand proceedings resulting from our prior opinion. See Rambough v. C.V. Hill Refrigeration, No. A-4598-06 (App. Div. July 28, 2008). Prior to the previous appeal, the judge had found petitioner, Joyce R. Rambough, permanently and totally disabled. The remand proceedings were conducted by a different judge, due to the intervening retirement of the judge who originally heard the case. After considering additional testimony in the remand proceedings, and after reviewing the record of the prior proceedings, the second judge again found petitioner permanently and totally disabled and reinstated the award of total permanent disability that we had vacated in our prior decision. The judge also awarded petitioner's counsel an additional fee to be paid by C.V. Hill, as well as an $800 witness fee.

C.V. Hill appeals. It argues that the judge (1) failed to identify with specificity the evidence upon which she relied, (2) improperly relied upon her observations of petitioner's hands during an in-chambers conference, and (3) improperly found that petitioner sustained a 100% loss of the use of both of her hands. C.V. Hill further argues that it met its burden under the odd-lot doctrine by presenting evidence of jobs available that petitioner could perform. Finally, C.V. Hill argues that the award of an attorney's fee of more than twenty percent to petitioner's attorney and a non-medical witness fee in excess of the statutorily permitted amount of $400 were improper.

We agree with C.V. Hill regarding the witness fee, and we accordingly order that the final judgment be modified to reduce the allowance to $400. We reject C.V. Hill's remaining arguments, and in all other respects we affirm.

Petitioner, who is now sixty-one years old, was employed by C.V. Hill as a punch press operator from 1986 until 1995. She has not worked in any employment since that time. Her prior employment included other jobs as a machine operator, and she had also been briefly employed as a nurse's aide and a school lunchroom attendant in the mid-1970s. Petitioner did not graduate from high school.

In her initial workers' compensation proceeding, petitioner's disability was adjudicated at thirty-three percent partial total disability. In a subsequent modification proceeding, it was increased to forty percent. Petitioner then brought the modification petition that is the subject of this appeal. The judgment resulting from that proceeding, entered on March 26, 2007, recited as its basis: "100% Disability due to bilateral carpal tunnel syndrome requiring multiple surgeries with multiple trigger fingers developing in both hands with a depressive reaction."

In our prior opinion, we held that, based on our review of the record, the factual findings of the judge were supported by sufficient credible evidence. Rambough, supra, (slip op. at 1-2). Those factual findings included that petitioner had "lost the effective use of both hands," and, "[w]hen this is considered in connection with the petitioner's age and educational background," she is "totally disabled." Id. (slip op. at 3).

We concluded that the initial judge "clearly invoked" the odd-lot doctrine. Ibid. Under that doctrine, if work-related physical and neuropsychiatric impairments result in at least seventy-five percent of total disability, factors other than physical and neuropsychiatric impairments that are personal to the claimant, including educational background, prior work history, and the like, may be considered in the determination of permanent total disability. N.J.S.A. 34:15-36; Lewicki v. N.J. Art Foundry, 88 N.J. 75, 81 (1981); Oglesby v. Am. Dredging Co., 64 N.J. 538, 548 (1974). The odd-lot doctrine holds "that the petitioner, while not totally disabled, nevertheless might be unemployable because of 'handicaps personal to the worker over and above the limitations on work capacity directly produced by his [or her] accidental injury.'" Lewicki, supra, 88 N.J. at 81 (quotingGermain v. Cool-Right Corp., 70 N.J. 1, 9 (1976)). The odd-lot doctrine views workers in the context of the competitive market place, where their inability to sell their labor may be traceable to their personal background, superimposed upon their physical disability. Darmetko v. Electron Tech., 243 N.J. Super. 536, 539 (App. Div. 1990), appeal dismissed, 126 N.J. 316 (1991).

Under the odd-lot doctrine, once a claimant makes a prima facie case of unemployability, the burden shifts to the employer to prove otherwise. In this case, the initial judge found that, because of a combination of petitioner's physical and neuropsychiatric impairments and her personal factors worthy of consideration under the odd-lot doctrine, she was not employable, and was thus permanently and totally disabled.

As we previously stated, we concluded in the prior appeal that those findings were supported by the record. However, because C.V. Hill was not on notice that the odd-lot doctrine might be applied, it was wrongfully deprived of the opportunity to meet its burden-shifting obligation and attempt to rebut petitioner's showing of unemployability. We noted in our prior opinion that "[n]otice is required before issuance of a judgment of total permanent disability based on the 'odd-lot' doctrine," and that "[n]otice is important because the employer must be permitted to meet the claim." Rambough, supra, (slip op. at 5) (citingKovach v. Gen. Motors Corp., New Departure Hyatt Bearings Div., 151 N.J. Super. 546, 552-53 (App. Div. 1978)); Germain,supra, 70 N.J. at 10.

Because there was no prior notice in this case, we

vacate[d] the judgment awarding compensation for total permanent disability on the basis of the "odd-lot" doctrine. We remand[ed] for the limited purpose of affording C.V. Hill the opportunity to present proofs to resist application of the doctrine, giving Rambough an opportunity to present rebuttal evidence, and allowing the judge to make new findings on the applicability of the doctrine based on the entire record.

Id. (slip op. at 5-6).

In accordance with our instructions, C.V. Hill presented at the remand hearing the testimony of an employability expert, Donna Kolsky. She testified that petitioner possessed transferable employment skills. She administered several tests to petitioner, gauging aptitude in such areas as visual speed, accuracy and fluency, on which petitioner performed well, and verbal comprehension and numerical ability, on which petitioner did not perform well. However, Kolsky did not test petitioner's use of her hands or her manual dexterity.

Kolsky opined that petitioner was physically and intellectually capable of returning to work, and that some of her skills would be transferable, while some necessary skills, such as operating a computer, would have to be newly trained. Kolsky identified several jobs that petitioner would be capable of performing, such as a school lunchroom attendant, department store fitting room attendant, diner cashier, and food services worker. According to Kolsky, although these jobs might require repetitive hand movements, petitioner could function in these capacities because the required hand movements would be gross, not fine, movements.

When questioned why she did not perform dexterity tests, Kolsky said she did not believe there was a need for testing petitioner's use of her hands. She felt that the type of work petitioner would be performing would not require speed and accuracy in the use of her hands, and therefore dexterity testing was not necessary.

Also as authorized by our remand directive, petitioner presented rebuttal evidence, namely, her employability expert, Edmond Provder. He explained that petitioner could perform numerous activities that did not require the use of her hands, such as sitting, standing, climbing stairs, and walking. She could carry approximately five pounds with one hand and two to three pounds with the other. She could also make fists with the exception of her right, middle finger, which did not move. Provder also described certain movements that petitioner was not capable of performing or which were painful for her to perform.

In Provder's view, petitioner could not perform the type of work she had previously done. Further, because she was an unskilled worker, she had few, if any, transferable skills. Provder did take into account petitioner's dexterity issues. He performed standardized dexterity tests, which he described in his testimony. Petitioner did not perform well in those tests. Provder said that because of the limitations caused by petitioner's debilitated hands she would be incapable of performing the jobs identified by Kolsky. He opined that she was unemployable.

In connection with one of the court proceedings during the remand, the judge, while in chambers and not on the record, viewed petitioner's hands and observed petitioner's movement of her hands. Both counsel were present. The judge memorialized her observations on the record. Neither counsel objected to this procedure.

On May 18, 2010, the judge issued a written decision. She found that Kolsky's testimony was "devoid of any probative value" because "even though this matter revolved around petitioner's ability to use her hands, no manual dexterity or other testing was done with the hands. For an employment expert to be of value to the [c]ourt there must be some connection between the body part involved and the objective findings." Accordingly, the judge found that Kolsky's testimony "[did] not merit any consideration by this court."

This finding was all that was necessary to conclude the remand proceeding within the narrow scope that we directed. The employer was given its opportunity to meet its burden-shifting obligation to rebut the finding that we had held was supported by the record evidence before the first judge, namely, that petitioner was permanently totally disabled under the odd-lot doctrine. The employer failed to meet its burden because the judge rejected in its entirety the testimony of the employer's employability expert.

The judge then went on to comment on Provder's testimony and the fact that "[h]e opined that petitioner's lack of dexterity, diminution of grip strength, and impaired bimanual coordination was such that she would not be able to find employment and was totally disabled as an industrial unit." Implicitly, the judge found Provder's testimony persuasive. This evidence, although relevant and further supportive of the court's ultimate disposition, was unnecessary in light of our prior opinion and C.V. Hill's failure to successfully rebut petitioner's proof that she was not employable. Provder's testimony merely served to bolster petitioner's proofs.

The judge then made the key finding in her written decision: "I therefore find that respondent has not borne its burden to prove that petitioner is employable." This was the only necessary finding within the scope of our limited remand.

The judge nevertheless offered an alternative basis for finding petitioner totally permanently disabled. Based upon her review of the record of the prior proceedings, and her observation of petitioner's hands, she found that total permanent disability was also established under N.J.S.A. 34:15-12c(20), based on the loss of use of both hands. In our view, this alternative finding was beyond the scope of our remand and was superfluous. We therefore do not comment further upon it and decline to address C.V. Hill's arguments pertaining to it. In this regard, our determination in our prior opinion that the first judge "clearly invoked" the odd-lot doctrine, and our remand for the "limited purpose" to enable new findings "on the applicability of the doctrine" was the law of the case. In re Denial of Reg'l Contribution Agreement, 418 N.J. Super. 94, 101 (App. Div. 2011) (stating that remand instructions are the law of the case).

Our review of a workers' compensation judge's factual findings is limited to whether those findings could reasonably have been reached on sufficient credible evidence in the record, considering the proofs as a whole, and giving due regard to the opportunity of the judge who heard the witnesses to evaluate their credibility, and considering the expertise of a workers' compensation judge when expertise is a pertinent factor. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The assessment of opinions rendered by employability experts is certainly within the realm of the expertise of judges of workers' compensation. We accordingly defer to the judge's findings regarding the relative worth of the testimony of the two employability experts in the remand proceeding. Those findings are well supported by the record, and we have no occasion to interfere with them. Accordingly, the result of the remand proceeding is that petitioner is totally and permanently disabled under the odd-lot doctrine.

In the first proceeding, the judge awarded petitioner's attorney a counsel fee for the full twenty percent of the amount of the judgment, as allowed by N.J.S.A. 34:15-64a.^¹ The amount of the award was $17,435, of which C.V. Hill was ordered to pay $11,265. The portion awarded against petitioner ($6,170) was designated as "waived."

At the conclusion of the remand proceeding, the judge made an additional award of $7500 to petitioner's attorney, to be paid entirely by C.V. Hill. In her written decision, the judge stated that, notwithstanding the earlier award to petitioner's counsel, this award was warranted because "it was through the attorney's efforts at the remand hearing that petitioner retained her disability award as well as the right to any future medical benefits." Quoting an unpublished opinion of this court, the judge noted that confirmation of a prior judgment which requires continuation of benefits, cash and medical treatment is tantamount to a money judgment in favor of the petitioner.

The statutory provision authorizing an award of counsel fees in compensation proceedings authorizes "a reasonable attorney fee, not exceeding 20% of the judgment." N.J.S.A. 34:15-64a. Our review of the award of counsel fees is narrowly circumscribed, and we will not interfere unless an award is manifestly excessive and thus constitutes a mistaken exercise of discretion. Gromack v. Johns-Manville Prods. Corp., 147 N.J. Super. 131, 137 (App. Div. 1977). The reasonableness of a fee in these cases should be evaluated in light of the nature and extent of the services and the responsibility involved, which, in turn, requires consideration of the need for the services, the matter in issue, the difficulty of the issues involved, the extent and nature of the matters contested, the degree of the attorney's expertise, and the value of his or her services to the petitioner. Id. at 135.

The judge in this case essentially found that but for the services rendered by petitioner's counsel in the remand proceedings, the favorable judgment, which had been vacated, would not have been reinstated. Therefore, those services resulted in what was tantamount to a new judgment entitling petitioner to long-term benefits valued at $77,187. In other words, had petitioner not acted in the aftermath of our prior decision, her award would have reverted to its prior level before the latest petition to modify, which is the subject of this appeal. That level was forty percent partial total disability, which had a value of $49,200. Because of the services rendered in the remand proceedings, the modified award of 100% total disability was reinstated, with a total value of $126,387, which, reduced by the $49,200 previously awarded, resulted in a net additional amount due to petitioner of $77,187.

Considering the relevant factors in determining the reasonableness of the award and our deferential standard of review, we find no mistaken exercise of discretion in awarding the additional counsel fee. We also are unpersuaded by C.V. Hill's argument that the additional award impermissibly exceeds the twenty percent statutory limitation. Our prior opinion vacated the judgment previously entered. The judge took into consideration the fact and amount of the earlier counsel fee award in determining an appropriate award for services rendered in the remand proceedings. We agree with the judge's rationale that the result of the remand proceeding is tantamount to a new money judgment in petitioner's favor.

Finally, the judge awarded an $800 witness fee for the report and testimony provided by Provder. C.V. Hill correctly argues that the statutory limit under N.J.S.A. 34:15-64a for such a fee is $400. We accordingly direct that the judgment be modified to reduce this fee award to $400.

Affirmed as modified.

1 Apparently due to a miscalculation, the amount of the fee slightly exceeded twenty percent. However, C.V. Hill did not appeal that award, and it is not before us in this appeal.

ALLEN V. LA FITNESS INTERNATIONAL A-5791-09T1 June 15, 2011

2011-08-05T11:30:00.000-07:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5791-09T1

EILEEN ALLEN,

Plaintiff-Respondent,

LA FITNESS INTERNATIONAL, LLC,

d/b/a LA FITNESS, USA, PT, LLC,

d/b/a BODY OF CHANGE,

Defendant-Appellant.

Argued May 9, 2011 – Decided June 15, 2011

Before Judges Grall, C.L. Miniman and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1628-08.

Norman W. Briggs argued the cause for appellant (Briggs Law Office, attorneys; Mr. Briggs, Adrienne Chapman and Elizabeth Casey, on the brief).

Louis J. DeVoto argued the cause for respondent (Rossetti & DeVoto, attorneys Mr. DeVoto, on the brief).

PER CURIAM

Plaintiff Eileen Allen joined defendant LA Fitness International, LLC, and signed an agreement for personal training sessions with LA Fitness, USA, PT, LLC, doing business as Body of Change.^¹ Alleging simple negligence, Allen filed an action to recover damages from defendant for a shoulder injury she asserted was sustained as a consequence of performing an "unsafe exercise" at the direction of a trainer who had failed to assess her condition and needs. Relying on Allen's agreement to assume the risk of her activities with the personal trainer and her release and waiver of claims based on negligence related to that activity, defendant moved for a directed verdict at the close of Allen's case. The judge denied that application, and the jury found defendant negligent, awarding Allen $525,000. The judge subsequently denied defendant's motions for judgment notwithstanding the verdict and a new trial or remittitur. Defendant appeals.

Two days after defendant filed its notice of appeal, the Supreme Court issued its decision in Stelluti v. Casapenn Enterprises, 203 N.J. 286 (2010). The Court held that agreements between a gym and its patron limiting liability for "injuries sustained as a matter of negligence that result from a patron's voluntary use of equipment and participation in instructed activity" are enforceable. Id. at 313. Stelluti controls, and it requires reversal of the judgment and dismissal of Allen's complaint. Because we resolve the case with reference to the exculpatory clauses in the contract, we do not reach defendant's claims of trial error or objections to the verdict.

On September 22, 2005, Allen signed an agreement to join LA Fitness. When Allen went to the gym for the first time, she signed an eighteen-month contract for personal training. The following is printed at the bottom of the first page of the contract immediately above the signature line:

By signing this Agreement Client acknowledges that Client has read, understood and agreed with all terms and conditions of this agreement, after having the opportunity to have it reviewed by an attorney at the discretion of Client. Client further acknowledges Client has received a filled-in and completed copy of the agreement, which includes the EFT Request & Authorization, Client's Acknowledgment & Assumption of Risk, Limitation of Liability & Full Release of Body of Change, Client's Acceptance of Release and Waiver, and all additional Terms and Provisions located on the front and reverse side of the Agreement . . . .

[(Emphasis in original).]

The reverse side of the agreement includes the referenced acknowledgement and assumption of risk and the client's release and waiver.

Client's Acknowledgement & Assumption of Risk: Client acknowledges that the Services purchased hereunder include participation in strenuous physical activities, including, but not limited to, aerobic dance, weight training, stationary bicycling, various aerobic conditioning-machinery and possible various nutritional programs offered by BOC (the "Physical Activities"). Client acknowledges these Physical Activities involve the inherent risk of physical injuries or other damages, including, but not limited to, heart attacks, muscle strains, pulls or tears, broken bones, shin-splints, heat prostration, knee/lower back/foot injuries and any other illness, soreness, or injury however caused, occurring during or after Client's participation in the Physical Activities. Client further acknowledges that such risks, include, but are not limited to, injuries caused by the negligence of an

instructor. . . . Client agrees to assume all risk and responsibility involved with Client's participation in the Physical Activities. Client asserts that Client is capable of participating in Physical Activities. Client agrees to assume all risk and responsibility for Client exceeding his or her physical limits.

Limitation of Liability & Full Release of BOC: Client . . . agree[s] to fully release BOC, its owners, employees, and related entities or other authorized agents . . . from any and all liability, claims and/or litigation or other actions that Client may have for injuries . . . of any kind, including, but not limited to, direct, special, incidental, indirect, punitive or consequential damages, whether arising in tort, contract . . . or arising out of participation in the Services, including, but not limited to the Physical Activities, even if caused by the negligence or fault of BOC, its owners, employees, any related entities or other authorized agents, including independent contractors. Client is urged to have this Agreement reviewed by an attorney before signing.

[(Emphasis in original).]

There is no material difference between the foregoing paragraphs constituting Allen's assumption of risk and release and the assumption of risk and release executed by the plaintiff in Stelluti. Id. at 293. Accordingly, we conclude that the trial court erred in denying defendant's motion to dismiss at the close of Allen's case and its motion for judgment notwithstanding the verdict. Allen presents several arguments to provide alternative grounds for affirming the judgment. We turn to consider them.

Allen contends that this case is distinguishable from Stelluti because it involves a contract for a personal trainer. We disagree. The holding in Stelluti is stated broadly to include "participation in instructed activity." Id. at 313.

We agree with Allen that there are phrases in this assumption and waiver that can be read to exculpate defendant for gross negligence and reckless conduct that are not enforceable under the holding in Stelluti. Id. at 312-13. Nevertheless, we disagree with Allen's assertion that their presence renders the permissible portion of the waiver unenforceable as unconscionable. In this case, there was no claim or evidence of reckless conduct or gross negligence, and for that reason, the invalid phrases are not implicated. Accordingly, this argument warrants no further discussion. R. 2:11-3(e)(1)(E).

Finally, Allen contends that defendant waived the right to enforce this exculpatory agreement because defendant proceeded with discovery and did not file a motion for summary judgment. In its answer, defendant asserted several affirmative defenses, including assumption of risk. At the pre-trial conference, Allen's attorney advised that defense counsel had told him he planned to make a motion at the close of the case on assumption of risk. Allen's attorney asked the judge to consider a pre-trial motion he had filed. This colloquy followed:

[Allen's attorney:] I made a motion to bar assumption of the risk just on the chance it was going to be brought up because it is in the contract that my client signed and I wanted to make sure that there wasn't going to be mention[] or comment about it during the trial, that she assumed a risk by contract of whatever happened to her at the gym.

The Court: You mean the release where you sign away all of your rights?

[Allen's attorney:] Yes.

The subsequent discussion makes it clear that this was not an objection to defense counsel's plan to make a motion for dismissal at the close of Allen's case. The discussion was about the scope of defense counsel's cross-examination. On defense counsel's representation that he would not question Allen about the contract if there was a stipulation as to her signature because the question was a legal one, Allen's attorney agreed to the stipulation. He then moved on to discuss other outstanding pre-trial issues. When defense counsel moved for a directed verdict at the close of Allen's case, there was no objection.

Under these circumstances, we reject Allen's claim that the defense was inadequately pled or waived. It is clear that the parties' understood that in pleading assumption of risk as an affirmative defense, defendant gave effective notice of its intention to rely on the contract's exculpatory clauses. Allen's arguments to the contrary are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Reversed.

1 Prior to trial the parties stipulated that Body of Change was no longer in existence and that LA Fitness had acquired its assets and liabilities. Accordingly, the trial proceeded against LA Fitness.

NAACP OF CAMDEN COUNTY EAST VS. FOULKE MANAGEMENT CORP. A-1230-09T3 08-02-11

2011-08-05T10:01:00.000-07:00

08-02-11 NAACP OF CAMDEN COUNTY EAST, ET AL. VS. FOULKE MANAGEMENT CORP.

A-1230-09T3

This appeal concerns the enforceability of arbitration provisions in various form documents that a consumer signed in connection with her purchase of a new motor vehicle from a New Jersey dealership. After disputing several charges that she had been billed, the consumer and a local chapter of the NAACP brought a class action, alleging that the dealership's practices violated numerous statutes and, in particular, that the arbitration provisions were unenforceable.

We affirm the trial court's specific ruling that the class action waiver provisions should not be invalidated on publicpolicy grounds, a conclusion in keeping with the United States Supreme Court's recent decision in AT&T Mobility LLC v. Concepcion, 563 U.S. ___, 131 S. Ct. 1740, 179 L. Ed. 2d 742 (2011). However, we also conclude that the disparate arbitration provisions here were too confusing, too vague, and too inconsistent to be enforced. We therefore reverse the trial court's dismissal of the complaint directing the parties to binding arbitration. We also vacate as premature the court's dismissal of the NAACP chapter for lack of standing.

LAKESIDE MANOR AND MOUNTAIN LAKES ESTATES VS. STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION A-0843-09T3 08-01-11

2011-08-05T09:40:00.000-07:00

LAKESIDE MANOR AND MOUNTAIN LAKES ESTATES VS. STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION A-0843-09T3

A violation of a condition of a permit does not render the permit "null and void"; it only provides a possible ground for revocation of the permit. The DEP erred in concluding that developers were not entitled to an exemption from the Highlands Act because, even though they completed construction of the sewer lines for the development before the deadline for the exemption, they failed to obtain EPA approval of the revised wetlands mapping required by the permits for that construction.

Whirlpool Properties v. Div. of Taxation (A-25-10) (066595) 7-28-11

2011-07-29T13:48:00.000-07:00

7-28-11 Whirlpool Properties, Inc., v. Director, Div. of Taxation (A-25-10) (066595)

For corporate taxpayers having a substantial nexus to New Jersey, the Throw-Out rule may apply constitutionally only to untaxed receipts from states that lack jurisdiction to tax the corporation due to insufficient connection with the corporation or due to congressional action such as 15 U.S.C.A. §§ 381- 84(commonly referred to as “P.L. 86-272”), but not to receipts that are untaxed because to impose an income tax.

7-28-11 J.D. v. M.D.F. (A-115-09)(065499)

2011-07-29T13:40:00.000-07:00

7-28-11 J.D. v. M.D.F. (A-115-09)(065499)

In this domestic violence matter,the trial courtfailed to sufficiently articulate its findings and conclusions and the record contains insufficient evidence to sustain the determination to enter a Final Restraining Order. The matter is remanded to the trial court for a re-hearing to protect M.D.F.’s due process rights and to permit the trial court to evaluate the testimony and the evidence.

Luchejko v. City of Hoboken (A-38-10)(066580) 7-27-11

2011-07-29T13:34:00.000-07:00

7-27-11 Richard Luchejko v. City of Hoboken (A-38-10)(066580)

The Appellate Division properly analyzed the facts of this case and concluded that the use of the condominium complex is residential and, therefore, no sidewalk liability attaches for the injury to plaintiff.

Paper Corporation v. New Community Corporation (A-41/42-10; 066531) 7-25-11

2011-07-29T13:30:00.000-07:00

7-25-11 Paper Corporation v. New Community Corporation, et al. (A-41/42-10; 066531)

In this dispute between two business entities regarding purchase prices and payment for products, the trial court’s findings that were central to its evaluation of the buyer’s Consumer Fraud Act counterclaim fail for want of sufficient credible evidence in the record, and the appellate panel erred I deferring to those findings and, by extension, in affirming the trial court’s conclusions. Furthermore, the panel erred in its analysis of the seller’s breach of contract claim by imposing a duty of written notice of non-delivery on the buyer that is found neither in the Uniform Commercial Code nor in the course of dealing between the parties.

Jersey Division of Youth and Family Services v. R.D. (A-2-10; 066070) 7-20-11

2011-07-29T13:29:00.000-07:00

7-20-11 Jersey Division of Youth and Family Services v. R.D. (A-2-10; 066070)

Unless the parties are on notice that Title Nine abuse or neglect proceedings are to be conducted under the clear and convincing evidence standard constitutionally required for guardianship/termination of parental rights proceedings under Title Thirty and appropriate accommodations are made for the fundamentally different natures of these proceedings. Title Nine determinations cannot be given preclusive effect in later Title Thirty proceedins.

TRIARSI VS. BSC GROUP SERVICES A-5047-09T1 07-26-11

2011-07-29T13:02:00.000-07:00

07-26-11 JOSEPH J. TRIARSI, ET AL. VS. BSC GROUP SERVICES, LLC, ET AL.

A-5047-09T1

We affirmed the dismissal of two counts of a three-count complaint alleging that an insurance broker and its agent failed to prevent the cancellation of a life insurance policy, and then failed to assist with its reinstatement. All three counts had been dismissed for failure to serve a timely affidavit of merit. The first count alleged breach of a fiduciary duty. The second alleged professional negligence. We determined that the count alleging the breach of fiduciary duty was essentially the same as the professional negligence count, relying on Aden v. Fortsh, 169 N.J. 64, 78-79 (2001), and that an affidavit of merit was required for both.

We reversed the dismissal of the third count, which alleged a breach of a "special relationship" based upon the insurance agent having "assume[ed] duties in addition to those normally associated with the agent-insured relationship" by conduct that invited plaintiff's detrimental reliance. Finding that the claim does not require proof of a deviation from a professional standard of care, but rather proof of the parties' conduct, we concluded that an affidavit of merit was not required.

We rejected plaintiff's assertion that there were "extraordinary circumstance" warranting a dismissal without prejudice, largely because plaintiff's counsel made a "judgment call" that an affidavit of merit was not required for the first two counts.

JECKER VS. HIDDEN VALLEY A-3898-09T3 07-26-11

2011-07-29T12:56:00.000-07:00

07-26-11 STEVEN JECKER VS. HIDDEN VALLEY, INC., ET AL. A-3898-09T3

Plaintiffs filed suit under the Uniform Fraudulent Transfer Act (the UFTA), N.J.S.A. 25:2-7 to -19, seeking to impose a constructive trust on the proceeds from the sale of a ski resort, Hidden Valley, Inc. (Hidden Valley), to a group of investors. The principal of Hidden Valley held two mortgages and other security interests on all assets of the ski resort. The mortgages and security interests were recognized and preserved during bankruptcy reorganization that pre-dated plaintiffs' claims.While plaintiffs' lawsuits against Hidden Valley were pending, the principal foreclosed on his mortgages, was the sole bidder at the sheriff's sale, and ultimately transferred the resorts assets. The trial judge concluded that plaintiffs failed to prove any fraudulent intent.

We affirmed, but for other reasons. We concluded that under the UFTA, the foreclosure was not a "transfer" of an "asset" of the debtor. And, the subsequent sale had none of the "badges of fraud" discussed in Gilchinsky v. Nat'l Westminster Bank N.J., 159 N.J. 463 (1999).

PRICE VS. MARTINETTI A-1834-10T3 07-25-11

2011-07-29T12:55:00.000-07:00

07-25-11 LARRY PRICE VS. MARTIN T. MARTINETTI, ET AL. A-1834-10T3

A landowner who obtains the land use approvals required for a development project, and subsequently obtains the land use approvals required for a different form of development project on the site, does not lose the benefit of the approvals authorizing construction of the originally planned project.

FUTTERMAN VS. BOARD OF REVIEW A-3888-09T2 07-25-11

2011-07-29T12:20:00.000-07:00

07-25-11 JOAN B. FUTTERMAN VS. BOARD OF REVIEW, ET AL. A-3888-09T2

The principal issue presented in this case is whether a State employee who is obligated by a union contract to take several mandatory furlough days may qualify for unemployment benefits by scheduling several days in a single work week. We affirm the Board of Review's denial of benefits and hold that the employee is ineligible for unemployment compensation because (1) she was bound by the terms of her union contract, which was freely and voluntarily negotiated, see N.J.S.A. 34:13A-5.3 (granting union representatives the authority "to act for and negotiate agreements" for all bargaining unit employees), and (2) she did not do everything necessary and reasonable to remainemployed, see In re Adoption of N.J.A.C. 12:17-9.6 by the N.J. Dep't of Labor, 395 N.J. Super. 394, 401 (App. Div. 2007).

TOSCANO V. TOWNSHIP OF CHERRY HILL A-5372-09T1 May 26, 2011

2011-07-22T12:42:00.000-07:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5372-09T1

GERALDINE TOSCANO and

DONALD TOSCANO,

Plaintiffs-Appellants,

TOWNSHIP OF CHERRY HILL,

COUNTY OF CAMDEN, STATE OF

NEW JERSEY,

Defendants-Respondents.

May 26, 2011

Argued February 15, 2011 - Decided

Before Judges Carchman and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1599-10.

Joseph A. Lombardo argued the cause for appellant Geraldine Toscano (Console & Hollawell, P.C., attorneys; Richard J. Hollawell, on the brief).

Laura A. Schaff, Deputy Attorney General, argued the cause for respondent State of New Jersey (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Schaff, on the brief).

Joshua A. Friedman, Assistant County Counsel, argued the cause for respondent County of Camden (Michael G. Brennan, County Counsel, attorney; Mr. Friedman, on the brief).

PER CURIAM

Plaintiff Geraldine Toscano appeals the denial of her application for leave to file a late notice of claim against defendants County of Camden and State of New Jersey. We reverse and remand for further proceedings consistent with this opinion.

We discern the following facts and procedural history from the record on appeal.

Toscano alleges that she was injured when she fell on a "broken and decrepit portion of the sidewalk" located on Kings Highway in the Township of Cherry Hill. She fell on September 15, 2009, and filed a notice of tort claim on October 28, 2009. Because she believed that the sidewalk was owned and maintained by Cherry Hill, she only named Cherry Hill in the notice.

After filing the notice, Toscano telephoned Cherry Hill to inquire if she needed to do anything further. Her call was never returned. On November 10, 2009, Cherry Hill's claims administrator, Scibal Associates, Inc. (Scibal), sent Toscano a letter acknowledging receipt of the notice. Toscano telephoned Scibal on December 18, 2009, and February 18, 2010, to ascertain whether there was anything more she needed to do. Scibal did not respond to either inquiry.

On February 22, 2010, Scibal wrote a letter to Camden County and the State, notifying them of the claim and enclosing a copy of the notice of claim. The letter asserted that the sidewalk at issue was not Cherry Hill's responsibility, but was instead on or adjacent to land controlled by Camden County and the State. A copy of the letter was sent to Toscano.

Toscano retained counsel on March 10, 2010. Suit was filed against Cherry Hill, Camden County, and the State on March 26, 2010.^¹Toscano filed a motion for leave to file a late claim against Camden County and the State on April 7, 2010, requesting oral argument if the motion were to be opposed. Camden County and the State opposed Toscano's motion, and also filed cross-motions seeking dismissal of the complaint as to them for failure to file a timely notice of claim.

The motion judge decided the motions on the papers on May 7, 2010, despite the requirement of Rule 1:6-2(d) that oral arguments be granted on such motions. He denied Toscano's motion and granted the cross-motions for dismissal. The judge's oral opinion set forth the arguments of the parties, but did not articulate the reasons for his conclusion that Toscano "failed to establish the existence of extraordinary circumstances."

Toscano filed a motion for reconsideration on May 27, 2010. The motion was opposed by Camden County and the State. Although Toscano again requested oral argument, the judge again decided the motion on the papers. After setting forth the arguments of the parties and the law with respect to motions for reconsideration, the judge simply concluded that Toscano "had not demonstrated that the [c]ourt overlooked facts or erred in making its judgment."

This appeal followed.

II.

On appeal, Toscano argues that the motion judge abused his discretion in denying her application for leave to file a late notice of claim. Camden County and the State argue that the judge properly exercised his discretion.

The substantive legal standards applicable in this case were discussed at length in our opinion in Leidy v. County of Ocean, 398 N.J. Super. 449, 455-57 (App. Div. 2008):

Claims against public entities are governed by the Tort Claims Act. N.J.S.A. 59:8-1 to -11. A party has ninety days from the accrual of his claim to file notice of a claim against a public entity. N.J.S.A. 59:8-8(a). This notice requirement was created:

(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the State in advance as to the indebtedness or liability that it may be expected to meet.

There is an exception to the ninety-day notice rule. N.J.S.A. 59:8-9 provides:

A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim.

[N.J.S.A. 59:8-9 (emphasis added).]

Thus, although the decision to grant a plaintiff permission to file late notice of a tort claim "'is a matter left to the sound discretion of the trial court,'" R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 340 (App. Div. 2006) (quoting Ohlweiler v. Twp. of Chatham, 290 N.J. Super. 399, 403 (App. Div. 1996), overruled on other grounds by Beauchamp [v. Amedio, 164 N.J. 111, 120 (2000))], this "discretion is limited to cases in which the claimant's affidavit shows 'sufficient reasons constituting extraordinary circumstances' for the delay and there is no 'substantial[] prejudice[]' to the public entity or employee." Ibid. (quoting Ohlweiler, supra, 290 N.J. Super. at 403) (alterations in original). Findings about "the lack of 'substantial prejudice' and the presence of 'extraordinary circumstances' . . . . must be expressly made in order to comply with the legislative mandate and to justify the entry of an order permitting the filing of a late notice of claim under N.J.S.A. 59:8-9." Allen v. Krause, 306 N.J. Super. 448, 455-56 (App. Div. 1997).

The "extraordinary circumstances" requirement was not part of the original Act, and mere "sufficient reasons" sufficed to warrant relief from the statutory time bar. The "extraordinary circumstances" language was added by amendment in 1994, L. 1994, c. 49, § 5, in order to raise the bar for the filing of late notice from a fairly permissive standard to a more demanding one. [T]he amendment may have signaled the end to a rule of liberality in filing. Notably, the 1994 amendment does not define what circumstances are to be considered "extraordinary" and necessarily leaves it for a case-by-case determination as to whether the reasons given rise to the level of "extraordinary" on the facts presented.

[(Citations and internal quotation marks omitted).]

There is no question that, as to Camden County and the State, Toscano did not serve a notice of tort claim within the ninety-day period required by N.J.S.A. 59:8-8(a). The ninety-day period expired on December 12, 2009. The record reflects that Camden County and the State did not receive a copy of Toscano's notice to Cherry Hill until shortly after Scibal sent them the February 22, 2010 letter enclosing the notice. The question before us is whether the motion judge abused the discretion accorded him by N.J.S.A. 59:8-9 in denying leave to file a late notice. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 136 (1988).

In Mendez v. South Jersey Transportation Authority, 416 N.J. Super. 525, 533 (App. Div. 2010), we observed that:

[A] reviewing court is to "examine more carefully cases in which permission to file a late claim has been denied than those in which it has been granted, to the end that wherever possible cases may be heard on their merits, and any doubts which may exist should be resolved in favor of the application." Lowe v. Zarghami, 158N.J. 606, 629 (1999) (quoting Feinberg v. N.J. Dep't of Envtl. Prot., 137 N.J. 126, 135 (1994)) (internal quotations omitted).

We also observed that:

In determining whether extraordinary circumstances exist, "a judge must consider the collective impact of the circumstances offered as reasons for the delay." R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 341 (App. Div. 2006).

We have also held that where discovering the identity of a responsible party is not thwarted by the original defendants, the issue becomes "whether plaintiff was diligent and made reasonable efforts to discover the identity of the true tortfeasor." Leidy v. County of Ocean, 398 N.J. Super. 449, 461 (App. Div. 2008). A key factor in determining whether a plaintiff acted with diligence in pursuing his or her claim is the promptness in contacting and retaining counsel to pursue plaintiff's rights. Lowe, supra, 158 N.J. at 626-30.

[Mendez, supra, 416 N.J. Super. at 533.]

Here, the record reflects that Toscano made the arguably reasonable assumption that the sidewalk where she fell was owned by Cherry Hill, and filed a notice of claim less than forty-five days after the accident. She attempted to contact Cherry Hill to ascertain whether she should take further action, but received no response. On November 10, 2009, within the ninety day period, Scibal advised Toscano that it had received the claim and asked her to provide medical releases and the identities of her treating physicians, but did not, at that point, question Cherry Hill's responsibility for the site of the accident.

Having been informed by the November 10 letter that all contact should be through Scibal, Toscano continued her efforts to ascertain whether she needed to take any further action by contacting Scibal twice, once on December 18 and again on February 18, 2010. Although she received no direct response to her inquiry, it would appear that the February 18 contact prompted Scibal to send out its February 22 letter, which asserted that Camden County and the State were responsible for the sidewalk. After receiving that letter, Toscano retained counsel on March 10 and commenced legal proceedings shortly thereafter.

Our review of the record, as outlined above, suggests that Toscano exercised a palpable degree of diligence and that she may have been led into believing that she had sent the claim to the right public entity by Scibal's letter acknowledging the claim and asking for medical information. See Leidy, supra, 398 N.J. Super. at 458 (discussing the requirement that the identity of the correct party be "obscured" as part of a showing of "extraordinary circumstances").^²

Our disposition of this appeal is hampered by the fact that the motion judge did not offer any explanation of the reasoning behind his exercise of discretion to deny leave to file a late claim. In the absence of such an explanation, we cannot determine whether there was an abuse of discretion. This is especially problematic here in that we must review the judge's exercise of discretion "more carefully" because permission to file a late claim was denied. Mendez, supra, 416 N.J. Super. at 533.

Consequently, we reverse the orders on appeal and remand to the Law Division for further consideration of Toscano's application for leave to file a late claim. We direct the judge assigned to hold oral argument on the motions, Rule 1:6-2(d), and to hold a plenary hearing to the extent deemed necessary to resolve any disputed issues of fact. The judge should also comply with Rule 1:7-4(a) with respect to findings of fact and conclusions of law. We do not retain jurisdiction.

Reversed and remanded.

1 Toscano's husband was named as plaintiff for purposes of a per quad claim.

2 We note that responsibility for the area where Toscano fell is apparently still in some dispute. Cherry Hill, through Scibal, contends that it is not responsible. In its brief in the Law Division, Camden County disclaimed responsibility. The State's brief did not take a position.