R.K. VS. F.K. A-4165-11T4

 R.K. VS. F.K.
          A-4165-11T4

Under the two-step process outlined in Lepis v. Lepis, 83 N.J. 139 (1980), a movant seeking a change of custody must show a change of circumstances warranting relief to be entitled to an evidentiary hearing, but the judge must

decide the evidentiary hearing based on the best interests of the child. After a seven-day divorce trial focused on child custody, the trial court mistakenly found no substantial change in circumstances rather than determining the best interests of the children.
The trial court also erred by relying on the Domestic Violence Act's provision that the court "shall presume that the best interests of the child are served by an award of [temporary] custody to the non-abusive parent." N.J.S.A. 2C:25-29(b)(11). That presumption, important in the initial FRO proceeding, has no application in a subsequent custody determination in a divorce trial, particularly once a change of circumstances has been shown. Rather, that trial is governed by N.J.S.A. 9:2-4, under which "the history of domestic violence" is one factor among several that the court must consider in determining the best interests of the children. 

DARCY J. KOLODZIEJ VS. BOARD OF EDUCATION OF SOUTHERN REGIONAL HIGH SCHOOL DISTRICT, OCEAN COUNTY A-4826-12T1

DARCY J. KOLODZIEJ VS. BOARD OF EDUCATION OF
          SOUTHERN REGIONAL HIGH SCHOOL DISTRICT, OCEAN
          COUNTY
          A-4826-12T1

We hold that maternity leave constitutes continued employment under N.J.S.A. 18A:28-5(a), entitling petitioner in this matter to tenure protection and status under the school district's Reduction In Force (RIF) plan. 

MICHAEL C. KAIN VS. GLOUCESTER CITY, ET AL. A-4854-12T2

MICHAEL C. KAIN VS. GLOUCESTER CITY, ET AL.
          A-4854-12T2

The plan or design immunity provision of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to :12-3, applies to injuries caused by "the plan or design of public property" approved "by the Legislature or the governing body of a public entity or some other body or a public employee exercising discretionary authority to give such approval . . . ." N.J.S.A. 59:4-6(a) (emphasis added). This case requires us to decide whether this provision exempts municipal defendants from liability for an allegedly dangerous condition in a pier designed by the Coast Guard and, specifically, whether the Coast Guard falls within the scope of the term, "some other body," under the statute. We decide that it does. We also conclude that the Charitable Immunity Act applies to the non-municipal defendants. 

IN RE CHALLENGE OF CONTRACT AWARD SOLICITATION 13-X-22694

IN RE CHALLENGE OF CONTRACT AWARD SOLICITATION
          13-X-22694 LOTTERY GROWTH MANAGEMENT SERVICES
          A-4629-12T4

The award of a long-term contract to a private entity for sales and marketing and other management functions of the New Jersey State Lottery did not violate the 1969 constitutional amendment that authorized the lottery or the State Lottery Law's provision "establishing a lottery to be operated by the State." N.J.S.A. 5:9-2. 

JORGE CASAL VS. HYUNDAI MOTOR AMERICA A-4487-12T3

JORGE CASAL VS. HYUNDAI MOTOR AMERICA
          A-4487-12T3

In a matter of first impression the issue is whether a manufacturer that violated the Lemon Law is required under N.J.S.A. 56:12-32a to pay counsel fees, for the work done by the consumer's attorney to cancel optional third party contracts arranged by the dealer at the time of the sale. We find this relief is required under the statute. 

CLAIR W. FLINN, ET AL. VS. AMBOY NATIONAL BANK AND AB MONMOUTH, LLC A-4216-12T1

CLAIR W. FLINN, ET AL. VS. AMBOY NATIONAL BANK AND AB MONMOUTH, LLC

A-4216-12T1

Plaintiffs, the owners of eighteen of the forty-eight constructed units in a partially-built, ninety-six-unit condominium complex, sought an order from the trial court granting them control of the condominium association's governing board. Plaintiffs relied on a provision within the New Jersey Condominium Act, N.J.S.A. 46:8B-12.1(a), which provides that "when some of the units of a condominium have been conveyed to purchasers and none of the others are being constructed or offered for sale by the developer in the ordinary course of business," then such unit owners "shall be entitled to elect all of the members of the [association's] governing board."

The trial court denied plaintiffs' request, relying upon N.J.A.C. 5:26-8.4(d), a regulation cited by defendants. The regulation states that "[a] developer may surrender control of the executive board of the [condominium] association prior to the time as specified [under the statute's percentage-based, lock-step procedures that are otherwise to be followed], provided the owners agree by a majority vote to assume control." The trial court ruled that plaintiffs were not entitled to an order transferring control because they had not agreed to assume such control by a majority vote of unit owners.

We reverse the trial court's decision because the cited regulation pertains to a developer's voluntary request to surrender control and does not pertain to the present situation of a request for involuntary surrender. In addition, the terms of the regulation cannot trump or negate the mandatory language of the statute.

The case is remanded for an evidentiary hearing to resolve the parties' factual dispute over whether or not the current developer is constructing or offering units for sale in the "ordinary course of business." In addition, in an unpublished portion of the opinion, we reversed the trial court's dismissal with prejudice of other counts of the complaint.

Borough of Merchantville v. Malik & Son A-66-12;

Borough of Merchantville v. Malik & Son, LLC, et al.
          (A-66-12; 072255)

          Prior to instituting a condemnation action, a
          condemning authority has an obligation to present an
          offer to acquire the subject property and to engage in
          bona fide negotiations only with the holder of the
          title of record or the holder of the interest sought
          to be condemned.  Therefore, the condemning authority
          here was not required to engage in negotiations with
          the holder of the final judgment of foreclosure for
          the property sought to be condemned.