01-08-08 A-2915-06T3
When there are competing dependency claims for Workers'
Compensation benefits, the employer is required to determine the
merits of the competing claims to allocate and pay benefits
equitably in order to secure the reduction in petitioner counsel
fee awards provided by N.J.S.A. 34:15-64(c). In the event that
the equitable allocation is contested, the attorney for the
prevailing petitioner is entitled under N.J.S.A. 34:5-64(c) to a
fee not to exceed twenty percent of the difference between the
benefits initially paid to his client by the employer and the
amount of the final award. The $50 limit contained in N.J.S.A.
34:15-64(c) applies only to petitioners who do not secure an
increase in benefits following a voluntary tender or payment.
Wednesday, January 9, 2008
Rosemary Connell v. Edward Diehl
01-08-08 A-2331-05T5
We held in this palimony action that the supporting
person's sole ownership of assets accumulated during their
uninterrupted thirty-year cohabitation was not inconsistent with
a promise of support for life. We also held that the dependent
person was not required to prove that she expected any
remuneration for her efforts to contribute to their marital-type
lifestyle over the years. Finally, we held that a trial judge
in calculating a lump-sum palimony award is not required to
place the dependent person in the lifestyle she and the
supporting person enjoyed, but rather to provide reasonable
support sufficient to meet her minimal needs and prevent the
necessity of public welfare, and in doing so must consider
inflation in calculating the lump-sum award.
We held in this palimony action that the supporting
person's sole ownership of assets accumulated during their
uninterrupted thirty-year cohabitation was not inconsistent with
a promise of support for life. We also held that the dependent
person was not required to prove that she expected any
remuneration for her efforts to contribute to their marital-type
lifestyle over the years. Finally, we held that a trial judge
in calculating a lump-sum palimony award is not required to
place the dependent person in the lifestyle she and the
supporting person enjoyed, but rather to provide reasonable
support sufficient to meet her minimal needs and prevent the
necessity of public welfare, and in doing so must consider
inflation in calculating the lump-sum award.
New Jersey Division of Youth and Family Services v. R.G.
01-08-08 A-2316-06T4
The trial court must appoint counsel to represent indigent
litigants during all proceedings in an abuse and neglect case.
A permanency hearing is not required when a child is placed
in the physical custody of a non-abusive parent.
The trial court must appoint counsel to represent indigent
litigants during all proceedings in an abuse and neglect case.
A permanency hearing is not required when a child is placed
in the physical custody of a non-abusive parent.
Tyrell Hardy v. Hamza Abdul-Matin
01-02-08 A-2153-06T3
We hold that PIP and UM benefits can be denied to an
insured, injured while a passenger in a stolen vehicle, only
upon proof that the insured knew or should have known that the
car was being driven without the owner's permission.
We hold that PIP and UM benefits can be denied to an
insured, injured while a passenger in a stolen vehicle, only
upon proof that the insured knew or should have known that the
car was being driven without the owner's permission.
Garvin McKnight v. Office of the Public Defender and Kevin Walshe, Esq.
12-31-07 A-5527-05T2
In this appeal, the court considered when a plaintiff's
malpractice action against his criminal defense attorney accrues
and whether -- as held by other jurisdictions -- the accrual
date is impacted by whether a plaintiff is actually innocent of
or has been exonerated from the underlying criminal charges.
Because these additional elements tend to produce unpredictable
and undesirable results, the court rejected their inclusion into
an accrual standard. However, because the results of postconviction
proceedings may be fatal to or otherwise impact upon
the presentation of a criminal malpractice action, the court
held that hereafter plaintiffs must commence at the same time,
if they have not already done so, post-conviction proceedings in
the criminal matter, and that trial courts freely stay criminal
malpractice actions until the underlying criminal proceedings
reach a logical conclusion.
Judge Stern filed a dissenting opinion.
In this appeal, the court considered when a plaintiff's
malpractice action against his criminal defense attorney accrues
and whether -- as held by other jurisdictions -- the accrual
date is impacted by whether a plaintiff is actually innocent of
or has been exonerated from the underlying criminal charges.
Because these additional elements tend to produce unpredictable
and undesirable results, the court rejected their inclusion into
an accrual standard. However, because the results of postconviction
proceedings may be fatal to or otherwise impact upon
the presentation of a criminal malpractice action, the court
held that hereafter plaintiffs must commence at the same time,
if they have not already done so, post-conviction proceedings in
the criminal matter, and that trial courts freely stay criminal
malpractice actions until the underlying criminal proceedings
reach a logical conclusion.
Judge Stern filed a dissenting opinion.
Elena Weber v. Mayan Palace Hotel & Resorts
12-27-07 A-3250-06T2
When a complaint has been dismissed for lack of prosecution
due to plaintiff's failure to serve the defendant, plaintiff may
serve defendant with the dismissed complaint before filing a
motion to restore the complaint. However, when serving the
complaint plaintiff must notify defendant that the complaint was
dismissed, and thereafter must promptly file a reinstatement
motion. Defendant's time to answer will run from the date the
complaint is reinstated.
When a complaint has been dismissed for lack of prosecution
due to plaintiff's failure to serve the defendant, plaintiff may
serve defendant with the dismissed complaint before filing a
motion to restore the complaint. However, when serving the
complaint plaintiff must notify defendant that the complaint was
dismissed, and thereafter must promptly file a reinstatement
motion. Defendant's time to answer will run from the date the
complaint is reinstated.
Scott Rumana, et al. vs. County of Passaic
12-24-07 A-1135-07T2
The prohibition of the New Jersey Local Budget Law, N.J.S.A.
40A:4-1 to -88, on deficit financing, N.J.S.A. 40A:4-3, and the
New Jersey Local Bond Law, N.J.S.A. 40A:2-1 to -64, on using
bond proceeds to finance current expenses, N.J.S.A. 40A:2-3(b),
override the provisions of the Local Budget Law, N.J.S.A.
40A:4-1 to -88, permitting counties to recognize proceeds from
the sale of county property as miscellaneous revenue, N.J.S.A.
40A:4-27, and the New Jersey County Improvement Authorities Law,
N.J.S.A. 40:37A-44 to -135, permitting counties to guarantee
bonds issued by county improvement authorities, N.J.S.A. 40:37A-
80. Thus, a county may not recognize the proceeds of the sale
of county property to a county improvement authority as
miscellaneous revenue to finance current expenses when the
county undertakes to guarantee bonds issued by the county
improvement authority to finance the purchase of county
property. [*Approved for Publication date]
The prohibition of the New Jersey Local Budget Law, N.J.S.A.
40A:4-1 to -88, on deficit financing, N.J.S.A. 40A:4-3, and the
New Jersey Local Bond Law, N.J.S.A. 40A:2-1 to -64, on using
bond proceeds to finance current expenses, N.J.S.A. 40A:2-3(b),
override the provisions of the Local Budget Law, N.J.S.A.
40A:4-1 to -88, permitting counties to recognize proceeds from
the sale of county property as miscellaneous revenue, N.J.S.A.
40A:4-27, and the New Jersey County Improvement Authorities Law,
N.J.S.A. 40:37A-44 to -135, permitting counties to guarantee
bonds issued by county improvement authorities, N.J.S.A. 40:37A-
80. Thus, a county may not recognize the proceeds of the sale
of county property to a county improvement authority as
miscellaneous revenue to finance current expenses when the
county undertakes to guarantee bonds issued by the county
improvement authority to finance the purchase of county
property. [*Approved for Publication date]
Township of West Orange v. 769 Associates, LLC
12-24-07 A-5677-05T5
In the context of an abandonment of condemnation action,
the right to recover costs and counsel fees is not contingent
upon the success of the property owner's defense strategy.
Furthermore, to qualify for reimbursement under N.J.S.A. 20:3-
26(b), the costs incurred by the property owner must have
occurred within the "four corners" of the condemnation action.
In the context of an abandonment of condemnation action,
the right to recover costs and counsel fees is not contingent
upon the success of the property owner's defense strategy.
Furthermore, to qualify for reimbursement under N.J.S.A. 20:3-
26(b), the costs incurred by the property owner must have
occurred within the "four corners" of the condemnation action.
Felix M. Garruto v. Lorraine Cannici
12-21-07 A-2447-06T1
We hold that an action for tortious interference with a
bequest, premised upon undue influence by means of fraud, is
barred when plaintiffs, with knowledge of probate proceedings,
have failed to file a timely challenge to the will in probate
court.
We hold that an action for tortious interference with a
bequest, premised upon undue influence by means of fraud, is
barred when plaintiffs, with knowledge of probate proceedings,
have failed to file a timely challenge to the will in probate
court.
John Bardis v. First Trenton Insurance Co.
12-20-07 A-1470-06T1
In this action, plaintiff filed a UIM claim against his
insurance carrier. At issue was whether his injuries were
proximately caused by the motor vehicle accident. An issue at
trial was whether evidence of the insurance carrier's prior
payment of PIP benefits on behalf of plaintiff was admissible in
the UIM trial on the issue of proximate cause. We concluded
that it was not admissible for two primary reasons. First,
although a UIM claim is a first-party claim by an insured
against his insurance carrier based on breach of contract, the
proofs necessary to sustain that claim are the same proofs that
an insured must establish against the tortfeasor. Thus, whether
the carrier paid PIP benefits on behalf of the insured is not
relevant. Second, we concluded that to permit evidence that an
insurance carrier previously paid PIP benefits would complicate
the insurance carrier's decision to pay those benefits, thereby
interfering with the public policy encouraging prompt payment of
an injured party's medical expenses.
In this action, plaintiff filed a UIM claim against his
insurance carrier. At issue was whether his injuries were
proximately caused by the motor vehicle accident. An issue at
trial was whether evidence of the insurance carrier's prior
payment of PIP benefits on behalf of plaintiff was admissible in
the UIM trial on the issue of proximate cause. We concluded
that it was not admissible for two primary reasons. First,
although a UIM claim is a first-party claim by an insured
against his insurance carrier based on breach of contract, the
proofs necessary to sustain that claim are the same proofs that
an insured must establish against the tortfeasor. Thus, whether
the carrier paid PIP benefits on behalf of the insured is not
relevant. Second, we concluded that to permit evidence that an
insurance carrier previously paid PIP benefits would complicate
the insurance carrier's decision to pay those benefits, thereby
interfering with the public policy encouraging prompt payment of
an injured party's medical expenses.
NL Industries, Inc. v. New Jersey Department of 07Environmental Protection
12-19-A-5877-05T1; A-5900-05T1
The trial court had jurisdiction to entertain plaintiff's
declaratory judgment action under N.J.S.A. 58:10B-3.1. The
trial court correctly held that the statute did not authorize
the DEP to remove NL as the remediating party for that portion
of a site for which no oversight document had been executed.
The trial court had jurisdiction to entertain plaintiff's
declaratory judgment action under N.J.S.A. 58:10B-3.1. The
trial court correctly held that the statute did not authorize
the DEP to remove NL as the remediating party for that portion
of a site for which no oversight document had been executed.
John C. Berkery, Sr. v. Monica Yant Kinney
12-18-07 A-1575-06T1
In this defamation case, plaintiff, who acknowledged six
criminal convictions as a younger man, which were publicized at
the time, remains a limited-purpose public figure with respect
to his earlier criminal involvement. As a limited-purpose public
figure, plaintiff must prove actual malice to prevail on a
defamation claim against a newspaper columnist and the newspaper
that published the allegedly defamatory articles. Sisler v.
Gannett Co., 104 N.J. 256, 279 (1986).
We affirm the trial court's decision that plaintiff failed
to submit sufficient evidence from which a jury could clearly
and convincingly conclude that any of the defendants acted with
actual malice.
In this defamation case, plaintiff, who acknowledged six
criminal convictions as a younger man, which were publicized at
the time, remains a limited-purpose public figure with respect
to his earlier criminal involvement. As a limited-purpose public
figure, plaintiff must prove actual malice to prevail on a
defamation claim against a newspaper columnist and the newspaper
that published the allegedly defamatory articles. Sisler v.
Gannett Co., 104 N.J. 256, 279 (1986).
We affirm the trial court's decision that plaintiff failed
to submit sufficient evidence from which a jury could clearly
and convincingly conclude that any of the defendants acted with
actual malice.
Carole Maguire v. Robin Mohrmann
12-13-07 A-1495-06T3
We affirmed the Special Civil Part judgment awarding
plaintiff damages after the puppy she purchased from defendant
pet dealer died five days after the sale. The Pet Purchase
Protection Act, N.J.S.A. 56:8-92 to -97 (PPPA) governs
consumers' rights when a cat or dog is purchased from a pet
shop. Pet dealers are subject to the Consumer Fraud Act,
N.J.S.A. 56:8-1 to -166, and the regulations promulgated there
under by the Director of the Division of Consumer Affairs.
N.J.A.C. 13:45A-12.1 to -12.3.
We affirmed the Special Civil Part judgment awarding
plaintiff damages after the puppy she purchased from defendant
pet dealer died five days after the sale. The Pet Purchase
Protection Act, N.J.S.A. 56:8-92 to -97 (PPPA) governs
consumers' rights when a cat or dog is purchased from a pet
shop. Pet dealers are subject to the Consumer Fraud Act,
N.J.S.A. 56:8-1 to -166, and the regulations promulgated there
under by the Director of the Division of Consumer Affairs.
N.J.A.C. 13:45A-12.1 to -12.3.
Mohammed Khan v. Sunil K. Singh, M.D.
12-12-07 A-1027-06T1
In this medical malpractice case, we held that: 1) a res
ipsa loquitur charge was not required because, even though
plaintiff's experts testified that the medical community
recognizes that an injury of the sort sustained by plaintiff
would not have occurred in the absence of negligence, the
experts' opinions were not supported by reference to any medical
text or the experts' own experience; and 2) a mistrial was not
required because the judge took appropriate curative measures to
address trial testimony by defendant that differed from
testimony that defendant had given in his deposition.
Judge Winkelstein has filed a dissenting opinion in which
he concludes that the judge erred by failing to instruct the
jury on res ispa loquitur.
In this medical malpractice case, we held that: 1) a res
ipsa loquitur charge was not required because, even though
plaintiff's experts testified that the medical community
recognizes that an injury of the sort sustained by plaintiff
would not have occurred in the absence of negligence, the
experts' opinions were not supported by reference to any medical
text or the experts' own experience; and 2) a mistrial was not
required because the judge took appropriate curative measures to
address trial testimony by defendant that differed from
testimony that defendant had given in his deposition.
Judge Winkelstein has filed a dissenting opinion in which
he concludes that the judge erred by failing to instruct the
jury on res ispa loquitur.
Education Law Center v. New Jersey Department of Education
12-11-07 A-5089-06T2
The Department of Education is not entitled to withhold,
either under the deliberative material exemption of OPRA or the
common law, a document entitled "Alternative Funding Formula
Simulations". The trial court's order directing release of the
document to plaintiff Education Law Center is affirmed.
The Department of Education is not entitled to withhold,
either under the deliberative material exemption of OPRA or the
common law, a document entitled "Alternative Funding Formula
Simulations". The trial court's order directing release of the
document to plaintiff Education Law Center is affirmed.
Carbis Sales, Inc., d/b/a Carbis Ladders v. Israel N. Eisenberg, Esq.
12-11-07 A-4976-05T5
In this action alleging legal malpractice in the defense of
the client's cause, plaintiffs were awarded damages
substantially less than the amount of the adverse judgment
against them in the underlying products liability case.
Consequently, plaintiffs moved for a new trial on damages only,
or additur, which was denied. On appeal, we agreed with
plaintiffs there was no reasonable basis in the evidence for the
jury's damage award, which was disproportionate to the adverse
judgment against them. However, because a general verdict was
returned, the remedy is a remand for a new trial as to all
issues and all parties.
Instead of using special interrogatories that would have
elicited jury findings as to whether malpractice was committed
in defending the liability phase of the product liability action
– in which case there would have been no recovery but for
defendant's negligence (there being no claim of comparative
fault to warrant any apportionment of liability); or in the
damages phase – in which event recovery may have been less than
awarded but for defendant's negligence – the jury was given no
instruction as to damages other than it was in their discretion
what, if anything, to award plaintiffs, and the verdict sheet
did not require the jury to specify which conclusion they had
reached. Because of this uncertainty, plaintiffs are not
entitled, in effect, to a directed verdict on liability as would
result if a remand were limited, as urged by plaintiffs, to a
damages-only new trial.
We also held that plaintiffs may not recover for legal fees
and costs expended for the services of a predecessor attorney in
defendant's law firm who was not negligent.
We further denied defendant's own appeal because the
factual and expert proofs were ample to demonstrate the trial
attorney's deviations from the standards of care of a reasonably
prudent defense lawyer.
In this action alleging legal malpractice in the defense of
the client's cause, plaintiffs were awarded damages
substantially less than the amount of the adverse judgment
against them in the underlying products liability case.
Consequently, plaintiffs moved for a new trial on damages only,
or additur, which was denied. On appeal, we agreed with
plaintiffs there was no reasonable basis in the evidence for the
jury's damage award, which was disproportionate to the adverse
judgment against them. However, because a general verdict was
returned, the remedy is a remand for a new trial as to all
issues and all parties.
Instead of using special interrogatories that would have
elicited jury findings as to whether malpractice was committed
in defending the liability phase of the product liability action
– in which case there would have been no recovery but for
defendant's negligence (there being no claim of comparative
fault to warrant any apportionment of liability); or in the
damages phase – in which event recovery may have been less than
awarded but for defendant's negligence – the jury was given no
instruction as to damages other than it was in their discretion
what, if anything, to award plaintiffs, and the verdict sheet
did not require the jury to specify which conclusion they had
reached. Because of this uncertainty, plaintiffs are not
entitled, in effect, to a directed verdict on liability as would
result if a remand were limited, as urged by plaintiffs, to a
damages-only new trial.
We also held that plaintiffs may not recover for legal fees
and costs expended for the services of a predecessor attorney in
defendant's law firm who was not negligent.
We further denied defendant's own appeal because the
factual and expert proofs were ample to demonstrate the trial
attorney's deviations from the standards of care of a reasonably
prudent defense lawyer.
B.D. v. Division of Medical Assistance and Health Services
12-10-07 A-1868-06T1
In this appeal, the court considered whether B.D., a
seventy-seven-year-old, wheelchair-bound woman already in need
of services, received fair market value when she transferred her
home, which had been appraised at $259,917, together with the
right to receive the rental income on an apartment within the
home that was then generating $1,180 per month, to her grandson
in exchange for his satisfaction of a $67,374.98 mortgage,
$10,191.70 in cash, and a lease of the other apartment within
the home to B.D. "for life." Concluding that the phrase "for
life," which was accompanied by unexplained references in the
lease to B.D.'s life expectancy, together with uncertainty as to
B.D.'s rights to the leasehold if she ceased occupying them,
rendered questionable B.D.'s claim that she received fair market
value and warranted a hearing into the meaning of the lease
terms.
In this appeal, the court considered whether B.D., a
seventy-seven-year-old, wheelchair-bound woman already in need
of services, received fair market value when she transferred her
home, which had been appraised at $259,917, together with the
right to receive the rental income on an apartment within the
home that was then generating $1,180 per month, to her grandson
in exchange for his satisfaction of a $67,374.98 mortgage,
$10,191.70 in cash, and a lease of the other apartment within
the home to B.D. "for life." Concluding that the phrase "for
life," which was accompanied by unexplained references in the
lease to B.D.'s life expectancy, together with uncertainty as to
B.D.'s rights to the leasehold if she ceased occupying them,
rendered questionable B.D.'s claim that she received fair market
value and warranted a hearing into the meaning of the lease
terms.
Oceanport Holding, L.L.C. v. Borough of Oceanport and Planning Board of the Borough of Oceanport
12-07-07 A-6127-05T3
A developer is not required to show that it attempted to
obtain relief from the zoning applicable to its property without
litigation in order to have standing to maintain a Mount Laurel
action.
A developer is not required to show that it attempted to
obtain relief from the zoning applicable to its property without
litigation in order to have standing to maintain a Mount Laurel
action.
Dr. Jason Cohen v. Board of Adjustment of the Borough of Rumson
12-06-07 A-2293-06T2
Plaintiff constructed a 6306 square foot home that exceeded
the zoning limitations for building coverage by 293 square feet.
The Board of Adjustment denied his variance request; the Law
Division reversed the Board.
We reversed the Law Division but did not reinstate the
Board's decision. Instead, we remanded for the Board to
consider the testimony of plaintiff's experts, which the Board
substantially ignored in arriving at its decision. We also
instructed the Board to analyze plaintiff's application pursuant
to subsection c of N.J.S.A. 40:55D-70c(1), which applies to
exceptional situations "uniquely affecting a specific piece of
property or the structures lawfully existing thereon."
Plaintiff constructed a 6306 square foot home that exceeded
the zoning limitations for building coverage by 293 square feet.
The Board of Adjustment denied his variance request; the Law
Division reversed the Board.
We reversed the Law Division but did not reinstate the
Board's decision. Instead, we remanded for the Board to
consider the testimony of plaintiff's experts, which the Board
substantially ignored in arriving at its decision. We also
instructed the Board to analyze plaintiff's application pursuant
to subsection c of N.J.S.A. 40:55D-70c(1), which applies to
exceptional situations "uniquely affecting a specific piece of
property or the structures lawfully existing thereon."
In the Matter of the Liquidation of Integrity Insurance Company
12-13-07 (A-91-06/A-29-07)
Claims against the liquidated estate of an insolvent insurer
that have been incurred but not reported (BNR claims) are not
cognizable as “absolute” claims pursuant to N.J.S.A. 17:30C-
28(a)(1) and thus cannot share in the distribution of the
estate’s assets.
Claims against the liquidated estate of an insolvent insurer
that have been incurred but not reported (BNR claims) are not
cognizable as “absolute” claims pursuant to N.J.S.A. 17:30C-
28(a)(1) and thus cannot share in the distribution of the
estate’s assets.
Robert Maglies v. Estate of Bertha Guy
12-12-07 (A-50-06)
A functional co-tenant – one who can show that she has been
continuously in residence; that she has been a substantial
contributor toward satisfaction of the tenancy’s financial
obligations; and that her contribution has been acknowledged and
acquiesced to by her landlord – is entitled to invoke the
protections of the Anti-Eviction Act.
A functional co-tenant – one who can show that she has been
continuously in residence; that she has been a substantial
contributor toward satisfaction of the tenancy’s financial
obligations; and that her contribution has been acknowledged and
acquiesced to by her landlord – is entitled to invoke the
protections of the Anti-Eviction Act.
Barbara Basil v. Frank A. Wolf
12-11-07 (A-80-05/A-110-06)
Summary judgment dismissing all claims against the workers’
compensation carrier for the decedent’s employer was properly
granted. Under the facts of this case, there was no basis for a
direct action against the insurer for deficient medical care
provided to the decedent after his workplace injury.
Summary judgment dismissing all claims against the workers’
compensation carrier for the decedent’s employer was properly
granted. Under the facts of this case, there was no basis for a
direct action against the insurer for deficient medical care
provided to the decedent after his workplace injury.
Middletown Township PBA Local 124 v. Township of Middletown
12-3-07 (A-98-06)
N.J.S.A. 40A:10-23 grants municipalities discretion to assume
the cost of retiree’s health benefits so long as the retiree has
accrued twenty-five years of any combination of government
service credit. Only when the municipality chooses to require a
particular period of service within its borders will a
resolution or ordinance be required. Accordingly, the
arbitrator’s award did not violate any law and was subject only
to the “reasonably debatable” standard. Measured against that
standard, the award was properly confirmed.
N.J.S.A. 40A:10-23 grants municipalities discretion to assume
the cost of retiree’s health benefits so long as the retiree has
accrued twenty-five years of any combination of government
service credit. Only when the municipality chooses to require a
particular period of service within its borders will a
resolution or ordinance be required. Accordingly, the
arbitrator’s award did not violate any law and was subject only
to the “reasonably debatable” standard. Measured against that
standard, the award was properly confirmed.
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