03-24-09 Kelly Reilly, et al. v. Marc Weiss
A-5065-07T1
In this case, we determined that a landlord may not collect
as a security deposit an amount exceeding that permitted by
N.J.S.A. 46:8-21.2 (one and one-half months' rent). The
landlord cannot justify a greater amount by permitting the
tenant to maintain a pet on the premises, even though pets were
prohibited under the terms of the lease. We conclude that
although the Security Deposit Act, N.J.S.A. 46:8-19 to -26, does
not contain an express penalty for violations of N.J.S.A. 46:8-
21.2, any monies in excess of the statutory limit that are held
by the landlord and not returned at the termination of the lease
are monies "wrongfully withheld," and subject to the doubling
provisions of N.J.S.A. 46:8-21.1. Under the unusual facts of
this case, we permitted the landlord, who sought no affirmative
relief by counterclaim, but did prove damages in excess of the
lawful security deposit amount, to receive a credit against the
statutorily "doubled" amount.
Thursday, March 26, 2009
03-24-09 Continental Insurance Company, et al. v. Honeywell A-1973-08T1, A-1976-08T1, A-1978-08T1, A-1979-08T1, A- 1981-08T1, A-1982-08T1, A-1983-08T1
03-24-09 Continental Insurance Company, et al. v. Honeywell
International, Inc., et al., and Honeywell
International, Inc. v. Travelers Casualty and Surety
Company, et al.
A-1973-08T1, A-1976-08T1, A-1978-08T1, A-1979-08T1, A-
1981-08T1, A-1982-08T1, A-1983-08T1, A-1984-08T1 and
A-1986-08T1 (consolidated)
The court considered the trial court's application of
comity principles in these two companion cases.
In the first, Continental filed an action in New Jersey
seeking a declaration as to whether certain entities, including
the Resco defendants, were entitled to the benefits of coverage
from policies, extending over a four-year period, that were
issued to other entities. As the case bogged down in personal
jurisdiction disputes for more than three years, Resco commenced
suits in Indiana, Texas and Ohio seeking coverage from
Continental and many other insurers under policies issued over
far greater time periods (ranging from forty-two to fifty years)
than the four years in question in the New Jersey action. When
Continental moved for injunctive relief to bar Resco's
prosecution of the out-of-state cases, the trial judge permitted
Continental's joinder of all the parties and claims asserted in
the out-of-state cases; the trial judge then concluded that
because of the considerable conflict between the New Jersey action, as amended, and the out-of-state suits and, because the
New Jersey action was "first-filed," an injunction was required
to prevent Resco from prosecuting the out-of-state suits. In
reversing the injunction, the court found that Continental's
claim that the New Jersey suit was "first-filed" in these
unusual circumstances was, at best, ambiguous, and that other
special equities, including the slow progress of the New Jersey
action, inured against the issuance of the anti-suit injunction.
In the second case, the trial judge refused to dismiss or
stay Honeywell's action against Travelers that was filed eight
days after a substantially similar New York action was filed by
Travelers against Honeywell. The court held that the New York
action was "first-filed" and that there was insufficient support
for the argument that New Jersey was the "natural" forum for the
dispute or that Travelers had unfairly out-raced Honeywell to
court when the parties had been attempting to negotiate a
settlement for nearly four years and either party could have
filed suit at any time during that lengthy period.
International, Inc., et al., and Honeywell
International, Inc. v. Travelers Casualty and Surety
Company, et al.
A-1973-08T1, A-1976-08T1, A-1978-08T1, A-1979-08T1, A-
1981-08T1, A-1982-08T1, A-1983-08T1, A-1984-08T1 and
A-1986-08T1 (consolidated)
The court considered the trial court's application of
comity principles in these two companion cases.
In the first, Continental filed an action in New Jersey
seeking a declaration as to whether certain entities, including
the Resco defendants, were entitled to the benefits of coverage
from policies, extending over a four-year period, that were
issued to other entities. As the case bogged down in personal
jurisdiction disputes for more than three years, Resco commenced
suits in Indiana, Texas and Ohio seeking coverage from
Continental and many other insurers under policies issued over
far greater time periods (ranging from forty-two to fifty years)
than the four years in question in the New Jersey action. When
Continental moved for injunctive relief to bar Resco's
prosecution of the out-of-state cases, the trial judge permitted
Continental's joinder of all the parties and claims asserted in
the out-of-state cases; the trial judge then concluded that
because of the considerable conflict between the New Jersey action, as amended, and the out-of-state suits and, because the
New Jersey action was "first-filed," an injunction was required
to prevent Resco from prosecuting the out-of-state suits. In
reversing the injunction, the court found that Continental's
claim that the New Jersey suit was "first-filed" in these
unusual circumstances was, at best, ambiguous, and that other
special equities, including the slow progress of the New Jersey
action, inured against the issuance of the anti-suit injunction.
In the second case, the trial judge refused to dismiss or
stay Honeywell's action against Travelers that was filed eight
days after a substantially similar New York action was filed by
Travelers against Honeywell. The court held that the New York
action was "first-filed" and that there was insufficient support
for the argument that New Jersey was the "natural" forum for the
dispute or that Travelers had unfairly out-raced Honeywell to
court when the parties had been attempting to negotiate a
settlement for nearly four years and either party could have
filed suit at any time during that lengthy period.
03-23-09 Balentine and Gianetta v. New Jersey Insurance Underwriters Association A-4186-07T3
03-23-09 William H. Balentine and Luke Gianetta v. New Jersey
Insurance Underwriters Association
A-4186-07T3
The record owner of real property, who is serving as the
nominee of another person, has an insurable interest in that
realty sufficient to recover the proceeds of a vandalism
insurance policy on which he is listed as a named insured.
Insurance Underwriters Association
A-4186-07T3
The record owner of real property, who is serving as the
nominee of another person, has an insurable interest in that
realty sufficient to recover the proceeds of a vandalism
insurance policy on which he is listed as a named insured.
03-20-09 Rabinowitz v. Wahrenberger A-1626-07T1
03-20-09 Phyllis Rabinowitz v. Judith Wahrenberger
A-1626-07T1
Questions posed by an attorney representing a defendant in
a medical malpractice action to a plaintiff prosecuting the
action are protected by the litigation privilege. The trial
court correctly dismissed plaintiffs' complaint which sought
damages fdistress.
A-1626-07T1
Questions posed by an attorney representing a defendant in
a medical malpractice action to a plaintiff prosecuting the
action are protected by the litigation privilege. The trial
court correctly dismissed plaintiffs' complaint which sought
damages fdistress.
03-20-09 Rabinowitz v. Wahrenberger A-1626-07T1
03-20-09 Phyllis Rabinowitz v. Judith Wahrenberger
A-1626-07T1
Questions posed by an attorney representing a defendant in
a medical malpractice action to a plaintiff prosecuting the
action are protected by the litigation privilege. The trial
court correctly dismissed plaintiffs' complaint which sought
damages fdistress.
A-1626-07T1
Questions posed by an attorney representing a defendant in
a medical malpractice action to a plaintiff prosecuting the
action are protected by the litigation privilege. The trial
court correctly dismissed plaintiffs' complaint which sought
damages fdistress.
03-19-09 Dept of Environmental Protection, Bureau of County Environmental and Waste Compliance Enforcement v. Mazza and Sons A-4097-07T1
03-19-09 Dept of Environmental Protection, Bureau of County Environmental and
Waste Compliance Enforcement v. Mazza and Sons A-4097-07T1
03-19-09 State of New Jersey Department of Environmental
Protection, Bureau of County Environmental and
Waste Compliance Enforcement v. Mazza and Sons, Inc.,
Borough Property, L.L.C., Dominick J. Mazza,
Individually, and James Mazza, Individually
A-4097-07T1
A party who has not filed a timely appeal from a final
administrative agency order may not collaterally attack that
order in an enforcement action by the agency under Rule 4:67-6.
However, an agency is not automatically entitled to a judicial
enforcement of an administrative order simply by filing a
complaint in the Chancery Division; to obtain such enforcement,
the agency must show that the party to whom the order was
directed failed to comply and necessary to secure compliance.
Waste Compliance Enforcement v. Mazza and Sons A-4097-07T1
03-19-09 State of New Jersey Department of Environmental
Protection, Bureau of County Environmental and
Waste Compliance Enforcement v. Mazza and Sons, Inc.,
Borough Property, L.L.C., Dominick J. Mazza,
Individually, and James Mazza, Individually
A-4097-07T1
A party who has not filed a timely appeal from a final
administrative agency order may not collaterally attack that
order in an enforcement action by the agency under Rule 4:67-6.
However, an agency is not automatically entitled to a judicial
enforcement of an administrative order simply by filing a
complaint in the Chancery Division; to obtain such enforcement,
the agency must show that the party to whom the order was
directed failed to comply and necessary to secure compliance.
03-19-09 Barber and Barber v. Shoprite of Englewood & Associates, Inc. A-6311-05T2
03-19-09 Joyce Barber and Michael James Barber, Her Husband v.
Shoprite of Englewood & Associates, Inc.
A-6311-05T2
1. The cumulative effect of numerous errors that are not
individually reversible may result in an unfair trial warranting
reversal and a new trial under the cumulative error doctrine.
2. Where an attorney-juror undertakes to explain legal
terms from the jury charge to the other jurors, those
explanations may have a "tendency" to influence the verdict and
warrant(1951).
Shoprite of Englewood & Associates, Inc.
A-6311-05T2
1. The cumulative effect of numerous errors that are not
individually reversible may result in an unfair trial warranting
reversal and a new trial under the cumulative error doctrine.
2. Where an attorney-juror undertakes to explain legal
terms from the jury charge to the other jurors, those
explanations may have a "tendency" to influence the verdict and
warrant(1951).
3-26-08 Education Law Center v. New Jersey Department of Education (A-100-07)
3-26-08 Education Law Center v. New Jersey Department of
Education (A-100-07)
A government record, which contains factual components, is
subject to the deliberative process privilege when it was used
in the decision-making process and its disclosure would reveal
the nature of the deliberations that occurred during that process.
Education (A-100-07)
A government record, which contains factual components, is
subject to the deliberative process privilege when it was used
in the decision-making process and its disclosure would reveal
the nature of the deliberations that occurred during that process.
3-25-09 DEG, LLC v. Township of Fairfield, et al. (A-116-07)
3-25-09 DEG, LLC v. Township of Fairfield, et al. (A-116-07)
Rule 4:50-1(e) does not relieve the Township of Fairfield from a
consent judgment based on its settlement of a zoning dispute
over the location of DEG, LLC’s sexually oriented business, and
the provision of the judgment that directed Fairfield to provide
a certificate of nonconforming use did not violate the Municipal
Land Use Law.
Rule 4:50-1(e) does not relieve the Township of Fairfield from a
consent judgment based on its settlement of a zoning dispute
over the location of DEG, LLC’s sexually oriented business, and
the provision of the judgment that directed Fairfield to provide
a certificate of nonconforming use did not violate the Municipal
Land Use Law.
3-25-09 Penn National Insurance Company v. Frank Costa, et al. (A-36-08)
3-25-09 Penn National Insurance Company v. Frank Costa, et al.
(A-36-08)
In order to determine whether an injury arises out of the
maintenance, operation or use of a motor vehicle thereby
triggering automobile insurance coverage, there must be a
substantial nexus between the injury suffered and the asserted
negligent maintenance, operation or use of the motor vehicle.
In this case, there is no rational linkage between the negligent
failure to clear the driveway of snow and ice and the entirely
non-negligent maintenance activity in which Costa was engaged.
Therefore, CostaArians’s claims.
(A-36-08)
In order to determine whether an injury arises out of the
maintenance, operation or use of a motor vehicle thereby
triggering automobile insurance coverage, there must be a
substantial nexus between the injury suffered and the asserted
negligent maintenance, operation or use of the motor vehicle.
In this case, there is no rational linkage between the negligent
failure to clear the driveway of snow and ice and the entirely
non-negligent maintenance activity in which Costa was engaged.
Therefore, CostaArians’s claims.
3-24-09 Abraham Hemsey v. Board of Trustees, Police & Firemen’s Retirement System (A-15-08)
3-24-09 Abraham Hemsey v. Board of Trustees, Police &
Firemen’s Retirement System (A-15-08)
It was error for the Board to cancel Hemsey’s PFRS retirement
benefits and to require him to re-enroll in PFRS. Hemsey did
not satisfy the statutory requirements for mandatory re-
enrollment because there was insufficient credible evidence to
conclude that he exercised administrative or supervisory duties
over police officers or firefighters.
Firemen’s Retirement System (A-15-08)
It was error for the Board to cancel Hemsey’s PFRS retirement
benefits and to require him to re-enroll in PFRS. Hemsey did
not satisfy the statutory requirements for mandatory re-
enrollment because there was insufficient credible evidence to
conclude that he exercised administrative or supervisory duties
over police officers or firefighters.
3-18-09 Czar, Inc. v. Jo Anne Heath, et al. (A-114-07)
3-18-09 Czar, Inc. v. Jo Anne Heath, et al. (A-114-07)
The Consumer Fraud Act, the Contractor’s Registration Act, the
New Home Arranty Act, and the regulations promulgated pursuant
to those statutes were designed to provide an integrated scheme
of protections for homeowners. The contractor, which neither
acted as the general contractor nor qualified as a builder of
new homes, was engaged in the business of home improvements and
subject to the remedies of the Consumer Fraud Act.
The Consumer Fraud Act, the Contractor’s Registration Act, the
New Home Arranty Act, and the regulations promulgated pursuant
to those statutes were designed to provide an integrated scheme
of protections for homeowners. The contractor, which neither
acted as the general contractor nor qualified as a builder of
new homes, was engaged in the business of home improvements and
subject to the remedies of the Consumer Fraud Act.
3-18-09 Czar, Inc. v. Jo Anne Heath, et al. (A-114-07)
3-18-09 Czar, Inc. v. Jo Anne Heath, et al. (A-114-07)
The Consumer Fraud Act, the Contractor’s Registration Act, the
New Home Arranty Act, and the regulations promulgated pursuant
to those statutes were designed to provide an integrated scheme
of protections for homeowners. The contractor, which neither
acted as the general contractor nor qualified as a builder of
new homes, was engaged in the business of home improvements and
subject to the remedies of the Consumer Fraud Act.
The Consumer Fraud Act, the Contractor’s Registration Act, the
New Home Arranty Act, and the regulations promulgated pursuant
to those statutes were designed to provide an integrated scheme
of protections for homeowners. The contractor, which neither
acted as the general contractor nor qualified as a builder of
new homes, was engaged in the business of home improvements and
subject to the remedies of the Consumer Fraud Act.
Tuesday, March 17, 2009
03-17-09 Asbury Park Press v. County of Monmouth Paff v. Monmouth County A-3567-07T2/A-3626-07T2 (consolidated)
03-17-09 Asbury Park Press v. County of Monmouth
Paff v. Monmouth County
A-3567-07T2/A-3626-07T2 (consolidated)
The Open Public Records Act does not permit a government
agency to withhold disclosure of the confidential agreement it
reached with an employee to settle her sexual harassment
lawsuit. Although the definition of "government record" in OPRA
excludes "information generated . . . in connection with any
sexual harassment complaint filed with a public employer," that
exclusion does not apply to a sexual harassment lawsuit filed
with the court. The prevailing requestor is entitled to
reimbursement of some attorney's feesrequest may have been properly denied.
Paff v. Monmouth County
A-3567-07T2/A-3626-07T2 (consolidated)
The Open Public Records Act does not permit a government
agency to withhold disclosure of the confidential agreement it
reached with an employee to settle her sexual harassment
lawsuit. Although the definition of "government record" in OPRA
excludes "information generated . . . in connection with any
sexual harassment complaint filed with a public employer," that
exclusion does not apply to a sexual harassment lawsuit filed
with the court. The prevailing requestor is entitled to
reimbursement of some attorney's feesrequest may have been properly denied.
03-13-09 Iron Mountain Information Managementv. Newark, et al. A-6561-06T2
03-13-09 Iron Mountain Information Management, Inc. v.
City of Newark, et al.
A-6561-06T2
We hold that with one limited exception, a commercial
tenant is not entitled in the redevelopment context to
individual advance notice of a municipality's intention to
declare blighted the building in which the tenant's business is
located. A commercial tenant is not entitled to the enhanced
notice provisions we required in Harrison Redevelopment Agency
v. DeRose, 398 N.J. Super. 361 (App. Div. 2008), for fee simple
owners.
City of Newark, et al.
A-6561-06T2
We hold that with one limited exception, a commercial
tenant is not entitled in the redevelopment context to
individual advance notice of a municipality's intention to
declare blighted the building in which the tenant's business is
located. A commercial tenant is not entitled to the enhanced
notice provisions we required in Harrison Redevelopment Agency
v. DeRose, 398 N.J. Super. 361 (App. Div. 2008), for fee simple
owners.
03-12-09 Sweeney v. Sweeney A-1182-07T2
03-12-09 Sweeney v. Sweeney
A-1182-07T2
A property settlement agreement incorporated into a divorce
decree does not preclude a subsequent arbitration claim by a
claimant against the ex-spouse's employer-brokerage firm where
the claimant-spouse had a contractual relationship with the
brokerage firm and the issue of investment misconduct by the
broker-spouse was not litigated in the divorce action.
A-1182-07T2
A property settlement agreement incorporated into a divorce
decree does not preclude a subsequent arbitration claim by a
claimant against the ex-spouse's employer-brokerage firm where
the claimant-spouse had a contractual relationship with the
brokerage firm and the issue of investment misconduct by the
broker-spouse was not litigated in the divorce action.
03-11-09 Open MRI of Morris & Essex, L.P. V. Frieri A-4689-07T2
03-11-09 Open MRI of Morris & Essex, L.P. V. John R. Frieri
A-4689-07T2
Plaintiffs opened and operated an MRI facility without
first obtaining a license from the Department of Health and
Senior Services. They obtained a license after the Commissioner
of the Department announced an amnesty period during which a
license could be obtained without administrative penalties being
assessed. That amnesty provision did not shieldpenalties imposed for committing insurance fraud.
A-4689-07T2
Plaintiffs opened and operated an MRI facility without
first obtaining a license from the Department of Health and
Senior Services. They obtained a license after the Commissioner
of the Department announced an amnesty period during which a
license could be obtained without administrative penalties being
assessed. That amnesty provision did not shieldpenalties imposed for committing insurance fraud.
03-11-09 John K. Chance and Irene P. Chance, As Co-Executors of the Estate of Keron D. Chance v. McCann A-1155-07T3
03-11-09 John K. Chance and Irene P. Chance, As Co-Executors of
the Estate of Keron D. Chance v. Kevin P. McCann
A-1155-07T3
This appeal concerns allegations of breach of a partnership
agreement between two attorneys, one of whom was about to retire
when the agreement was signed. The agreement called for the
continuing partner to pay the retiring partner $630,000 over
time. After the retiring partner's death, his estate sought to
recover the unpaid balance, plus interest. The remaining
partner defended the action, arguing that he only signed the
agreement because the retiring partner agreed that he was not
really owed that amount and would not seek to collect it. In a
counterclaim, the remaining partner alleged that the retiring
partner himself breached the agreement. The remaining partner
lost in the trial court through summary judgment and after trial
as to one count of the counterclaim. We reversed as to the
estate's claim and one count of the counterclaim, but affirmed
as to the other count.
We agreed with the trial court that (1) the remaining
partner was precluded by the parol evidence rule from seeking to
vary the terms of the agreement through oral testimony and (2)
equitable fraud was not applicable. We held that the remaining
partner should have been permitted to litigate certain
affirmative defenses, including laches and waiver. We concluded
that, because of the unique facts presented, this was the rare
case in which laches might bar recovery even though the suit was
filed within the six-year statute of limitations for contract
claims. The retiring partner had not brought suit himself
during the almost four years after the remaining partner stopped
making payments. We also held that the remaining partner should
have been permitted to argue that the retiring partner's own
breach excused his further performance.
We reversed the jury verdict with respect to the remaining
partner's allegation that the retiring partner breached the
agreement's requirement that he use good faith efforts to
persuade his clients to remain with the firm. We held, in part,
that the trial judge should have applied the "clear and
convincing" standard of N.J.S.A. 2A:81-2 for the entire cause of
action only if oral testimony about the decedent's statements
were required to make out a prima facie case, disagreeing with
Moran v. Estate of Pellegrino, 90 N.J. Super. 122, 124-25 (App.
Div. 1966), and adopting the reasoning of Denville Amusement Co.v. Fogelson, 84 N.J. Super. 164, 168-69 (App. Div. 1964).
the Estate of Keron D. Chance v. Kevin P. McCann
A-1155-07T3
This appeal concerns allegations of breach of a partnership
agreement between two attorneys, one of whom was about to retire
when the agreement was signed. The agreement called for the
continuing partner to pay the retiring partner $630,000 over
time. After the retiring partner's death, his estate sought to
recover the unpaid balance, plus interest. The remaining
partner defended the action, arguing that he only signed the
agreement because the retiring partner agreed that he was not
really owed that amount and would not seek to collect it. In a
counterclaim, the remaining partner alleged that the retiring
partner himself breached the agreement. The remaining partner
lost in the trial court through summary judgment and after trial
as to one count of the counterclaim. We reversed as to the
estate's claim and one count of the counterclaim, but affirmed
as to the other count.
We agreed with the trial court that (1) the remaining
partner was precluded by the parol evidence rule from seeking to
vary the terms of the agreement through oral testimony and (2)
equitable fraud was not applicable. We held that the remaining
partner should have been permitted to litigate certain
affirmative defenses, including laches and waiver. We concluded
that, because of the unique facts presented, this was the rare
case in which laches might bar recovery even though the suit was
filed within the six-year statute of limitations for contract
claims. The retiring partner had not brought suit himself
during the almost four years after the remaining partner stopped
making payments. We also held that the remaining partner should
have been permitted to argue that the retiring partner's own
breach excused his further performance.
We reversed the jury verdict with respect to the remaining
partner's allegation that the retiring partner breached the
agreement's requirement that he use good faith efforts to
persuade his clients to remain with the firm. We held, in part,
that the trial judge should have applied the "clear and
convincing" standard of N.J.S.A. 2A:81-2 for the entire cause of
action only if oral testimony about the decedent's statements
were required to make out a prima facie case, disagreeing with
Moran v. Estate of Pellegrino, 90 N.J. Super. 122, 124-25 (App.
Div. 1966), and adopting the reasoning of Denville Amusement Co.v. Fogelson, 84 N.J. Super. 164, 168-69 (App. Div. 1964).
Wednesday, March 11, 2009
3-9-09 Pagano Company v. 48 South Franklin Turnpike, LLC (A-9-08)
3-9-09 Pagano Company v. 48 South Franklin Turnpike, LLC
(A-9-08)
In this dispute arising from the purchase of commercial property
by 48 South Franklin Turnpike, LLC (Franklin), the facts,
circumstances, and record, taken as a whole, demonstrate that
Franklin affirmatively assumed the seller’s obligation to pay
real estate broker commissions that were due under leases it
acquired through a general assignment.
(A-9-08)
In this dispute arising from the purchase of commercial property
by 48 South Franklin Turnpike, LLC (Franklin), the facts,
circumstances, and record, taken as a whole, demonstrate that
Franklin affirmatively assumed the seller’s obligation to pay
real estate broker commissions that were due under leases it
acquired through a general assignment.
03-10-09 Doreen Houseman v. Eric Dare A-2415-07T2
03-10-09 Doreen Houseman v. Eric Dare
A-2415-07T2
This appeal is from a judgment dividing real and personal
property jointly owned by cohabitants when they ended their
engagement to be married. The trial court concluded that the
law does not permit specific perfopossession of a pet. We reverse.
A-2415-07T2
This appeal is from a judgment dividing real and personal
property jointly owned by cohabitants when they ended their
engagement to be married. The trial court concluded that the
law does not permit specific perfopossession of a pet. We reverse.
03-09-09 Township of Cinnaminson v. Robert and Deana Bertino and FHG A-2074-07T1
03-09-09 Township of Cinnaminson and Edward M. Schaeffer,
Construction Official for the Township of Cinnaminson
v. Robert and Deana Bertino and FHG, INC. t/a Fantasy
Gifts and Rheta F. Cheskin and Bruce S. Cheskin
A-2074-07T1
The central issue in this appeal concerns the
constitutionality of a zoning ordinance adopted by the Township
of Cinnaminson that restricts the location where commercial
establishments that sell adult videos and novelty items can
operate. The trial court rejected defendants' constitutional
challenge, finding that the ordinance constituted a reasonable
time, place, and manner restriction, was content neutral, and
served a substantial governmental interest while allowing
reasonable alternative avenues of communication.
We reverse. We hold that the trial court misapplied the
holding in Hamilton Amusement Center v. Verniero, 156 N.J. 254
(1998), when it relied on a generalized notion of "common sense"
to find that the ordinance served a substantial governmental
interest. Although evidence of a substantial governmental
interest need not be based on empirical studies, such evidence
must nevertheless provide a rational, objective basis from which
to ascertain the existence of a substantial governmental
interest underpinning the legislation.
We also hold that under Township of Saddle Brook v. A.B.
Family Center, 156 N.J. 587 (1999), the Township of Cinnaminson
has the burden of showing the availability of alternative
suitable sites where the restricted business may operate. The
Township must make this determination in the context of the
restrictions imposed by N.J.S.A. 2C:34-7(a).
Construction Official for the Township of Cinnaminson
v. Robert and Deana Bertino and FHG, INC. t/a Fantasy
Gifts and Rheta F. Cheskin and Bruce S. Cheskin
A-2074-07T1
The central issue in this appeal concerns the
constitutionality of a zoning ordinance adopted by the Township
of Cinnaminson that restricts the location where commercial
establishments that sell adult videos and novelty items can
operate. The trial court rejected defendants' constitutional
challenge, finding that the ordinance constituted a reasonable
time, place, and manner restriction, was content neutral, and
served a substantial governmental interest while allowing
reasonable alternative avenues of communication.
We reverse. We hold that the trial court misapplied the
holding in Hamilton Amusement Center v. Verniero, 156 N.J. 254
(1998), when it relied on a generalized notion of "common sense"
to find that the ordinance served a substantial governmental
interest. Although evidence of a substantial governmental
interest need not be based on empirical studies, such evidence
must nevertheless provide a rational, objective basis from which
to ascertain the existence of a substantial governmental
interest underpinning the legislation.
We also hold that under Township of Saddle Brook v. A.B.
Family Center, 156 N.J. 587 (1999), the Township of Cinnaminson
has the burden of showing the availability of alternative
suitable sites where the restricted business may operate. The
Township must make this determination in the context of the
restrictions imposed by N.J.S.A. 2C:34-7(a).
Friday, March 6, 2009
03-06-09 Dragon, et al. v. New Jersey Department of Environmental Protection, et al. A-5743-06T2
03-06-09 Albert Dragon, et al. v. New Jersey Department of
Environmental Protection, et al.
A-5743-06T2
At issue is whether an administrative agency, through its
dispute resolution process, can effectively override statutory,
as well as its own regulatory requirements.
Here, after initially denying a CAFRA coastal general
permit for the tear down and reconstruction of an oceanfront
home nine feet closer to the ocean, the DEP, finding a
"litigation risk", settled the homeowner's challenge to the
agency's denial by issuing a letter of authorization "in lieu of
permit", approving the development subject to conditions
designed to meet several of the environmental concerns
underlying the regulation's development ban.
On a third-party challenge to DEP's authorization, we held
that, given the express language of the exception to the
regulatory development ban, which the homeowner clearly did not
meet, the DEP did not correctly assess its "litigation risk",
and that, in any event, the agency could not use its settlement
process to circumvent CAFRA's substantive permitting
requirements to allow regulated development in a coastal region
governed exclusively by CAFRA and its implementing regulations.
Environmental Protection, et al.
A-5743-06T2
At issue is whether an administrative agency, through its
dispute resolution process, can effectively override statutory,
as well as its own regulatory requirements.
Here, after initially denying a CAFRA coastal general
permit for the tear down and reconstruction of an oceanfront
home nine feet closer to the ocean, the DEP, finding a
"litigation risk", settled the homeowner's challenge to the
agency's denial by issuing a letter of authorization "in lieu of
permit", approving the development subject to conditions
designed to meet several of the environmental concerns
underlying the regulation's development ban.
On a third-party challenge to DEP's authorization, we held
that, given the express language of the exception to the
regulatory development ban, which the homeowner clearly did not
meet, the DEP did not correctly assess its "litigation risk",
and that, in any event, the agency could not use its settlement
process to circumvent CAFRA's substantive permitting
requirements to allow regulated development in a coastal region
governed exclusively by CAFRA and its implementing regulations.
03-05-09 Kaur and Singh v. Assured Lending A-6287-07T2/A-6288-07T2 (consolidated
03-05-09 Jagjit Kaur and Abhilasha Singh v. Assured Lending
Corp., Moin Ali, and Alex Senderov
A-6287-07T2/A-6288-07T2 (consolidated)
Settling parties who agree on a remedy of rescission and
leave to restore a settled matter to the trial list upon default
must include specific language preserving that remedy within the
terms of the settlement agreement. Ultimately, the
determination of whether the matter will be so restored rests
within the discretion of the motion judge, but the right to seek
leave for such relief should be explicitly preserved in the
agreement.
Corp., Moin Ali, and Alex Senderov
A-6287-07T2/A-6288-07T2 (consolidated)
Settling parties who agree on a remedy of rescission and
leave to restore a settled matter to the trial list upon default
must include specific language preserving that remedy within the
terms of the settlement agreement. Ultimately, the
determination of whether the matter will be so restored rests
within the discretion of the motion judge, but the right to seek
leave for such relief should be explicitly preserved in the
agreement.
03-05-09 Dempsey v. Alston, Interim Superintendent of Pleasantville Public School District and Pleasantville Board of Education A-4975-06T3
03-05-09 Ted Dempsey, Sr., and Patricia Dempsey, individually
and as guardians ad litem for their minor son, O.D. v.
Clarence Alston, Interim Superintendent of
Pleasantville Public School District, Felicia M.
Hyman, Assistant Principal of Pleasantville High
School, and Pleasantville Board of Education
A-4975-06T3
In this appeal, we affirmed the decision of the Chancery
Division judge, William C. Todd, III, rejecting plaintiffs'
challenge to the constitutionality of N.J.S.A. 18A:11-8, which
authorizes boards of education to adopt school dress code
policies. We found the statute constitutional on its face and
as applied to plaintiffs' son, a student in Pleasantville's
public school district, which adopted a school dress code policy
in 2001.
and as guardians ad litem for their minor son, O.D. v.
Clarence Alston, Interim Superintendent of
Pleasantville Public School District, Felicia M.
Hyman, Assistant Principal of Pleasantville High
School, and Pleasantville Board of Education
A-4975-06T3
In this appeal, we affirmed the decision of the Chancery
Division judge, William C. Todd, III, rejecting plaintiffs'
challenge to the constitutionality of N.J.S.A. 18A:11-8, which
authorizes boards of education to adopt school dress code
policies. We found the statute constitutional on its face and
as applied to plaintiffs' son, a student in Pleasantville's
public school district, which adopted a school dress code policy
in 2001.
03-04-09 DYFS v. A.R. - I/M/O Guardianship of C.S., Jr. A-5079-07T4
03-04-09 DYFS v. A.R. - I/M/O Guardianship of C.S., Jr.
A-5079-07T4
A comparative bonding evaluation of the child with his or
her natural parents and foster parents is almost always
necessary even when DYFS satisfies the second prong of the "best
interests" test for termination of parental rights, and was
necessary in this case. We affirm the denial of termination on
DYFS' appeal as to the youngest child only where the Family Part
denied termination as to the mother of all four children. (The
fathers had been terminated and do not appeal). If
reunification is unduly delayed, the Family Part can appoint a
professional to oversee the reunification process.
A-5079-07T4
A comparative bonding evaluation of the child with his or
her natural parents and foster parents is almost always
necessary even when DYFS satisfies the second prong of the "best
interests" test for termination of parental rights, and was
necessary in this case. We affirm the denial of termination on
DYFS' appeal as to the youngest child only where the Family Part
denied termination as to the mother of all four children. (The
fathers had been terminated and do not appeal). If
reunification is unduly delayed, the Family Part can appoint a
professional to oversee the reunification process.
03-03-09 North Jersey Media Group, Inc., d/b/a The Record v.Bergen County Prosecutor's Office and Ziegelheim A-2209-07T2
03-03-09 North Jersey Media Group, Inc., d/b/a The Record v.
Bergen County Prosecutor's Office and Jeffrey
Ziegelheim
A-2209-07T2
A prosecutor's office employee has a "special privacy"
interest in maintaining the confidentiality of records relating
to a request for approval of outside employment such that those
records are exempt from disclosure to a newspaper, which has
made a request for the documents pursuant to the Open Public
Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.
Bergen County Prosecutor's Office and Jeffrey
Ziegelheim
A-2209-07T2
A prosecutor's office employee has a "special privacy"
interest in maintaining the confidentiality of records relating
to a request for approval of outside employment such that those
records are exempt from disclosure to a newspaper, which has
made a request for the documents pursuant to the Open Public
Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.
03-02-09 In the Matter of Raymour and Flanigan Furniture, and Neil Goldberg, President and Individually A-4622-07T1 A-4622-07T1
03-02-09 In the Matter of Raymour and Flanigan Furniture, and
Neil Goldberg, President and Individually
A-4622-07T1
Appellant, Raymour and Flanigan, appeals from a decision of
the Commissioner of the Department of Labor and Workforce
Development. The Commissioner held that Raymour and Flanigan
did not qualify as a "trucking industry employer," and,
therefore, was not entitled to an exemption under the New Jersey
Wage and Hour Law allowing such employers to pay certain
employees an overtime rate of not less than 11⁄2 times the minimum
wage, rather than the statutorily required overtime rate of 11⁄2
times the employee's regular wage. Raymour and Flanigan argued
that although it is in the retail industry, for purposes of its
facilities from which it conducts its delivery operations, it
qualified as a "trucking industry employer," as that term is
defined by the Wage and Hour Law as any "business or
establishment" primarily operating for the purpose of conveying
property from one place to another. N.J.S.A. 34:11-56a4.
In affirming the Commissioner, we concluded that the
facilities in which Raymour and Flanigan conducts its trucking
operations are not separate establishments so as to qualify for
the trucking industry employer exemption. Thus, Raymour and
Flanigan is required to pay all employees 11⁄2 times the
employee's regular hourly wage for each hour the employee works
in excess of 40 in any week.
Neil Goldberg, President and Individually
A-4622-07T1
Appellant, Raymour and Flanigan, appeals from a decision of
the Commissioner of the Department of Labor and Workforce
Development. The Commissioner held that Raymour and Flanigan
did not qualify as a "trucking industry employer," and,
therefore, was not entitled to an exemption under the New Jersey
Wage and Hour Law allowing such employers to pay certain
employees an overtime rate of not less than 11⁄2 times the minimum
wage, rather than the statutorily required overtime rate of 11⁄2
times the employee's regular wage. Raymour and Flanigan argued
that although it is in the retail industry, for purposes of its
facilities from which it conducts its delivery operations, it
qualified as a "trucking industry employer," as that term is
defined by the Wage and Hour Law as any "business or
establishment" primarily operating for the purpose of conveying
property from one place to another. N.J.S.A. 34:11-56a4.
In affirming the Commissioner, we concluded that the
facilities in which Raymour and Flanigan conducts its trucking
operations are not separate establishments so as to qualify for
the trucking industry employer exemption. Thus, Raymour and
Flanigan is required to pay all employees 11⁄2 times the
employee's regular hourly wage for each hour the employee works
in excess of 40 in any week.
02-27-09 Catherine G. Alexander v. Board of Review A-1592-07T2
02-27-09 Catherine G. Alexander v. Board of Review
A-1592-07T2
We invalidate N.J.A.C. 12:23-5.1, a regulation governing
the showing that an applicant must make in order to obtain
extended unemployment benefits during training, finding the
regulation to be inconsistent with the statute it purports to
interpret, N.J.S.A. 43:21-60a. Applying the statute to
Alexander, we find her eligible to receive extended unemployment
benefits.
A-1592-07T2
We invalidate N.J.A.C. 12:23-5.1, a regulation governing
the showing that an applicant must make in order to obtain
extended unemployment benefits during training, finding the
regulation to be inconsistent with the statute it purports to
interpret, N.J.S.A. 43:21-60a. Applying the statute to
Alexander, we find her eligible to receive extended unemployment
benefits.
02-26-09 N.M. v. Division of Medical Assistance and Health Services and Monmouth County Board of Social Services A-0828-07T1
02-26-09 N.M. v. Division of Medical Assistance and Health
Services and Monmouth County Board of Social Services
A-0828-07T1
Under an amendment to the statutes governing the federal
Medicaid program enacted as part of the Deficit Reduction Act of
2005, the value of an annuity purchased for the sole benefit of
the "community spouse" may be considered in determining whether
the resources of the "institutionalized spouse" exceed the "resource limit" for Medicaid eligibility.
Services and Monmouth County Board of Social Services
A-0828-07T1
Under an amendment to the statutes governing the federal
Medicaid program enacted as part of the Deficit Reduction Act of
2005, the value of an annuity purchased for the sole benefit of
the "community spouse" may be considered in determining whether
the resources of the "institutionalized spouse" exceed the "resource limit" for Medicaid eligibility.
02-25-09 Disciplinary Action Against Detective Gonzalez A-1392-07T3
02-25-09 In The Matter Of The Disciplinary Action Against
Detective Ariel Gonzalez
A-1392-07T3
We held that the Waterfront Commission's media relations
policy, which prohibited employees from contacting the media
without prior approval of the Executive Director to be overbroad
and thus an unconstitutional prior restraint upon speech. We
also held the policy to have been unconstitutionally applied to
Detective Gonzalez, who was disciplined for contacting the media
to report a potentially toxic pile of dirt that had remained on
the Commission's property for three years and the presence of
dead rats in and around the dirt pile.
Detective Ariel Gonzalez
A-1392-07T3
We held that the Waterfront Commission's media relations
policy, which prohibited employees from contacting the media
without prior approval of the Executive Director to be overbroad
and thus an unconstitutional prior restraint upon speech. We
also held the policy to have been unconstitutionally applied to
Detective Gonzalez, who was disciplined for contacting the media
to report a potentially toxic pile of dirt that had remained on
the Commission's property for three years and the presence of
dead rats in and around the dirt pile.
02-24-09 Horsnall v. Washington Township Division of Fire; Fried, et als A-0655-07T3
02-24-09 David Horsnall v. Washington Township (Mercer County)
Division of Fire; David Fried, et als.
A-0655-07T3
The creation of a Division of Fire to replace a previously
existing Fire District does not eliminate a Fire District
Fireman’s statutorN.J.S.A. 40A:14-25.
Division of Fire; David Fried, et als.
A-0655-07T3
The creation of a Division of Fire to replace a previously
existing Fire District does not eliminate a Fire District
Fireman’s statutorN.J.S.A. 40A:14-25.
02-20-09 Egeland v. Zoning Board of Adjustment of Colts Neck A-3739-07T3
02-20-09 Janice A. Egeland v. Zoning Board of Adjustment of the
Township of Colts Neck
A-3739-07T3
This appeal raised the novel issue of whether a division of
real property by testamentary devise is a "self-created
hardship" for the purposes of an application for an undue
hardship variance pursuant to N.J.S.A. 40:55D-70(c). We
concluded that, although the division of a conforming lot by
testamentary devisee is permitted, a resulting non-conforming
lot constitutes a "self-created hardship," as that term is used
in Jock v. Zoning Board of Adjustment of Township of Wall, 184
N.J. 562, 591 (2005), for the purposes of the cited statute.
Township of Colts Neck
A-3739-07T3
This appeal raised the novel issue of whether a division of
real property by testamentary devise is a "self-created
hardship" for the purposes of an application for an undue
hardship variance pursuant to N.J.S.A. 40:55D-70(c). We
concluded that, although the division of a conforming lot by
testamentary devisee is permitted, a resulting non-conforming
lot constitutes a "self-created hardship," as that term is used
in Jock v. Zoning Board of Adjustment of Township of Wall, 184
N.J. 562, 591 (2005), for the purposes of the cited statute.
Hardy v. Abdul-Matin, et al., and Liberty Mutual Insurance
Hardy v. Abdul-Matin, et al., and Liberty Mutual Insurance Company
(A-112-07) Decided March 5, 2009
The unambiguous language in N.J.S.A. 39:6A-7(b)(2) and the
Liberty Mutual insurance policy make it clear that the plaintiff
may not receive Personal Injury Protection (PIP) benefits
because he did not have the permission of the owner to occupy
the vehicle in which he was injured.
(A-112-07) Decided March 5, 2009
The unambiguous language in N.J.S.A. 39:6A-7(b)(2) and the
Liberty Mutual insurance policy make it clear that the plaintiff
may not receive Personal Injury Protection (PIP) benefits
because he did not have the permission of the owner to occupy
the vehicle in which he was injured.
Thursday, March 5, 2009
2-18-09 Baboghlian v. Swift Electrical Supply
2-18-09 Elizabeth Baboghlian v. Swift Electrical Supply Co.
(A-106-07)
Under the circumstances presented, in the absence of a statutory
requirement to install a fire alarm system, the former Code
requirements to obtain a permit and perform inspections do not
justify the imposition of a nondelegable duty on a property
owner in the installation of a fire alarm system.
(A-106-07)
Under the circumstances presented, in the absence of a statutory
requirement to install a fire alarm system, the former Code
requirements to obtain a permit and perform inspections do not
justify the imposition of a nondelegable duty on a property
owner in the installation of a fire alarm system.
2-19-09 Bosland v. Warnock Dodge (A-97-07)
2-19-09 Rhonda Bosland v. Warnock Dodge, Inc. (A-97-07)
The Consumer Fraud Act does not require a consumer to seek a
refund from an offending merchant prior to filing a complaint.
The Consumer Fraud Act does not require a consumer to seek a
refund from an offending merchant prior to filing a complaint.
2-19-09 Livsey v. Mercury Insurance Group (A-96-07)
2-19-09 Camie Livsey v. Mercury Insurance Group (A-96-07)
There are fundamental differences between the personal injury
protection (PIP) statute and the uninsured motorist (UM) statute
sufficient to bar the importation of the extent of PIP coverage
in the context of a drive-by shooting to a UM coverage question.
Also, because the insured’s injuries from the drive-by shooting
were not causally connected to the insured’s use of her motor
vehicle, the Court reverses the judgment of the Appellate
Division and reinstates the trial court’s judgment in favor of the insurer.
There are fundamental differences between the personal injury
protection (PIP) statute and the uninsured motorist (UM) statute
sufficient to bar the importation of the extent of PIP coverage
in the context of a drive-by shooting to a UM coverage question.
Also, because the insured’s injuries from the drive-by shooting
were not causally connected to the insured’s use of her motor
vehicle, the Court reverses the judgment of the Appellate
Division and reinstates the trial court’s judgment in favor of the insurer.
2-23-09 In the Matter of the Civil Commitment of J.M.B.
2-23-09 In the Matter of the Civil Commitment of J.M.B.
(A-79-07)
When faced with an application for civil commitment under
N.J.S.A. 30:4-27.26(b), a court may consider the circumstances
that led to the qualifying prior conviction. When that conduct
is substantially equivalent to the sexually violent conduct
encompassed by the offenses in N.J.S.A. 30:4-27.26(a), then that
prior conviction may provide the predicate for a civil
commitment application under subsection (b). That determination
may be made by the committing court, on application of the
Attorney General.
(A-79-07)
When faced with an application for civil commitment under
N.J.S.A. 30:4-27.26(b), a court may consider the circumstances
that led to the qualifying prior conviction. When that conduct
is substantially equivalent to the sexually violent conduct
encompassed by the offenses in N.J.S.A. 30:4-27.26(a), then that
prior conviction may provide the predicate for a civil
commitment application under subsection (b). That determination
may be made by the committing court, on application of the
Attorney General.
2-26-09 Agha v. Feiner, et.al. (A-1-08)
2-26-09 Mahmoud Agha v. Valerie M. Feiner, et.al. (A-1-08)
The testimony of a physician qualified to interpret an MRI was
required to establish that the MRI represented proof of a
herniated disc, and, absent such testimony, the trial court was
required to give a limiting instruction regarding the jury’s use
of the MRI. Because the trial court’s rulings had the effect of
lulling Agha into believing that the production of the
radiologist who prepared the report was unnecessary, a new trial
is required.
The testimony of a physician qualified to interpret an MRI was
required to establish that the MRI represented proof of a
herniated disc, and, absent such testimony, the trial court was
required to give a limiting instruction regarding the jury’s use
of the MRI. Because the trial court’s rulings had the effect of
lulling Agha into believing that the production of the
radiologist who prepared the report was unnecessary, a new trial
is required.
Jen Electric v. County of Essex (A-23-08) March 5, 2009
Jen Electric, Inc. v. County of Essex
(A-23-08)
Decided March 4, 2009
The 2000 amendment to N.J.S.A. 40A:11-13(e) is intended as a
statute of limitations for bid specification challenges and does
not limit or otherwise substitute for traditional notions of
standing. In the circumstances presented, plaintiff has
standing to challenge the bid specifications issued by the
County.
(A-23-08)
Decided March 4, 2009
The 2000 amendment to N.J.S.A. 40A:11-13(e) is intended as a
statute of limitations for bid specification challenges and does
not limit or otherwise substitute for traditional notions of
standing. In the circumstances presented, plaintiff has
standing to challenge the bid specifications issued by the
County.
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