MERRILL
LYNCH, ET AL. VS. CANTONE RESEARCH, INC., ET AL.
A-2680-10T1; A-2682-10T1;
A-2699-10T1(CONSOLIDATED)
Wednesday, June 27, 2012
MERRILL LYNCH, ET AL. VS. CANTONE RESEARCH, INC., ET AL. A-2680-10T1; A-2682-10T1; A-2699-10T1(CONSOLIDATED)
RICHARD GREENBERG VS. NEW JERSEY STATE POLICE TROOPER NICHOLAS J. PRYSZLAK, ET AL. A-5925-10T1
RICHARD
GREENBERG VS. NEW JERSEY STATE POLICE TROOPER NICHOLAS J. PRYSZLAK, ET AL. A-5925-10T1
Following
a dispute between plaintiff and defendant Oil Station, Inc. (OSI), which had
performed an oil change on plaintiff's vehicle and allegedly damaged the
vehicle's battery
in
the process, plaintiff closed the bank account on which he had made the
original payment of $129.44 and provided OSI a check for $31.02, the amount
which plaintiff felt was due. OSI contacted
the State Police, which conducted an investigation and
ultimately
concluded there was probable cause to believe plaintiff violated the bad check
statute, N.J.S.A. 2C:21-5. Plaintiff
was arrested in his home and held at a state police
barracks
until he agreed to pay the full amount OSI claimed was due.
Plaintiff commenced this action,
alleging false arrest, false imprisonment, various constitutional violations,
and other common law torts. The
trial judge granted summary judgment in favor of the State Police and the other
State defendants, as well as OSI and its representative. The court reversed, concluding that an
arrest within the home was unlawful absent an arrest warrant or exigent
circumstances -- both of which were
absent
-- or consent, which turned on disputed questions of fact that could not be
decided at the summary judgment stage.
The court also held there were genuine questions of material fact regarding
the State defendants' claim that probable cause to arrest existed and on the
defense of qualified immunity, thereby precluding summary judgment.
In addition, the court reversed the
summary judgment entered in favor of OSI and its representative because that judgment
was based on the trial judge's dismissal of the claims
against
the State defendants. The court
also found there was evidence to support plaintiff's theory that OSI and its representative
conspired with the State defendants to falsely arrest and imprison plaintiff because,
among other things, OSI had previously enlisted the aid of the State Police in
the collection of OSI's unpaid bills. 06-26-12
JEREMY S. PITCOCK VS. KASOWITZ, BENSON, TORRES, and FRIEDMAN, L.L.P. A-5036-10T2
JEREMY
S. PITCOCK VS. KASOWITZ, BENSON, TORRES, & FRIEDMAN, L.L.P.
A-5036-10T2
Under
the "most significant relationship" test that now controls the
resolution of choice-of-law questions in tort actions, plaintiff's malicious
use of process claim based on a
lawsuit filed against him in New York arising out of the termination of
his partnership in a New York law firm is barred by New York's one-year limitations
period applicable to such actions. 06-25-12
ASDAL BUILDERS, LLC, ET AL. VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET AL. A-2392-10T1
ASDAL
BUILDERS, LLC, ET AL. VS. NEW JERSEY
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
ET AL.
A-2392-10T1
We published that portion of our lengthy
opinion reviewing the final decision of the Commissioner of the Department of Environmental
Protection (DEP), regarding the renovation and construction of structures
located in a floodway, which addressed penalty assessments imposed pursuant to
the DEP's authority designated in the Environmental Enforcement Enhancement Act
(EEEA), L. 2007, c. 246. The
enactment of the EEEA eased the penalty assessment procedure by granting the
DEP direct authority to impose assessments rather than pursue an injunction and
penalties through an action filed in Superior Court. N.J.S.A. 58:16A-63(a) (2004), amended by L. 2007, c. 246 (Jan
4, 2008).
We reversed and vacated the EEEA
assessments, finding they applied to alleged violations that pre-existed the
statute's adoption, which were being challenged on appeal, and could not be
considered "on-going." 06-25-12
IN THE MATTER OF THE BOARD’S MAIN EXTENSION RULES N.J.A.C. 14:3-8.1 ET SEQ.A-1626-10T2; A-1640-10T2; A-2026-10T2; A-2227- 10T2(CONSOLIDATED)
IN
THE MATTER OF THE BOARD’S MAIN EXTENSION RULES
N.J.A.C. 14:3-8.1 ET SEQ.A-1626-10T2; A-1640-10T2; A-2026-10T2;
A-2227-
10T2(CONSOLIDATED)
In
this appeal, we addressed the question of whether, and to what extent, our 2009
opinion in In re Centex Homes, LLC, 411 N.J. Super. 244 (App. Div. 2009) should
have retroactive effect. In Centex, we invalidated as ultra vires the 2005
Board of Public Utilities (BPU) regulations known as the Main Extension Rules,
N.J.A.C. 14:3-8.1 to -8.13, deeming the Extension Rules an "extreme
departure" from the procedures that had been extant for nearly a
century.
Despite our sweeping invalidation of the
Extension Rules, BPU chose to afford our Centex decision only pipeline retroactivity,
confining the benefit of Centex to only eighteen developers, and denying the benefit
of Centex to hundreds of others.
IN THE MATTER OF THE CIVIL COMMITMENT OF D.Y. SVP-491-08 A-4296-09T2
IN
THE MATTER OF THE CIVIL COMMITMENT OF D.Y. SVP-491-08
A-4296-09T2
J.E.V. VS. K.V.
J.E.V. VS. K.V.
A-2933-09T2
In this appeal, we reaffirm established principles governing the award of limited duration alimony, which consider the length of the marriage, the period of economic dependency during the marriage, and the skills and education necessary to return to the workforce rather than the marital lifestyle and the ability to replicate the marital lifestyle at the end of the chosen term. Once the trial judge found that the mental illness affecting the supported spouse would not interfere with her ability to obtain and sustain employment, we affirmed a ten-year limited duration alimony award. 06-21-12
A-2933-09T2
In this appeal, we reaffirm established principles governing the award of limited duration alimony, which consider the length of the marriage, the period of economic dependency during the marriage, and the skills and education necessary to return to the workforce rather than the marital lifestyle and the ability to replicate the marital lifestyle at the end of the chosen term. Once the trial judge found that the mental illness affecting the supported spouse would not interfere with her ability to obtain and sustain employment, we affirmed a ten-year limited duration alimony award. 06-21-12
IN THE MATTER OF THE PETITION OF RICHARD G. MURPHY, II, FOR MANDATORY RELIEF FOR PUBLIC SERVICE ELECTRIC AND GAS COMPANY’S OVERCOLLECTION OF “STRANDED COST” SURCHARGES PURSUANT TO N.J.S.A. 48:3-61 A-4758-10T2
The Electric Discount and Energy Competition Act (EDECA), N.J.S.A. 48:3-49 to -98.4, allows an electric utility company to recover certain "stranded costs" by imposing market transition charges (MTC) and transition bond charges (TBC) upon its customers. While EDECA allows the Board of Public Utilities to periodically review the amount of the MTC the company has collected, it does not require the Board to reconsider its prior order fixing the amount of the company's "stranded costs." Furthermore, EDECA precludes the Board from re-evaluating the amount of the "stranded costs" the company may recover through the TBC. 06-20-12
The Electric Discount and Energy Competition Act (EDECA), N.J.S.A. 48:3-49 to -98.4, allows an electric utility company to recover certain "stranded costs" by imposing market transition charges (MTC) and transition bond charges (TBC) upon its customers. While EDECA allows the Board of Public Utilities to periodically review the amount of the MTC the company has collected, it does not require the Board to reconsider its prior order fixing the amount of the company's "stranded costs." Furthermore, EDECA precludes the Board from re-evaluating the amount of the "stranded costs" the company may recover through the TBC. 06-20-12
N.G. VS. J.P. A-3247-10T3
N.G. VS. J.P. A-3247-10T3
In this appeal from the issuance of a final restraining order (FRO) under the Prevention of Domestic Violence Act, we affirmed the exercise of jurisdiction even though the parties, who are adult siblings, have not resided together since 1960,when they both were children. We agreed with the judge's determination that the harassment of plaintiff by defendant over the intervening decades -- although sporadic – conferred jurisdiction on the Family Part to issue the FRO, in light of the fact that the present incidents arose directly from the parties' acrimonious family relationship and their status as former household members. 06-18-12
In this appeal from the issuance of a final restraining order (FRO) under the Prevention of Domestic Violence Act, we affirmed the exercise of jurisdiction even though the parties, who are adult siblings, have not resided together since 1960,when they both were children. We agreed with the judge's determination that the harassment of plaintiff by defendant over the intervening decades -- although sporadic – conferred jurisdiction on the Family Part to issue the FRO, in light of the fact that the present incidents arose directly from the parties' acrimonious family relationship and their status as former household members. 06-18-12
S.J. VS. DIVISION OF MEDICAL ASSISTANCE, ET AL. R.H. VS. JENNIFER VELEZ, ETC. C.B. VS. JENNIFER VELEZ, ETC. A-5714-10T1; A-5803-10T2; A-5804-10T1 (CONSOLIDATED
S.J.
VS. DIVISION OF MEDICAL ASSISTANCE, ET AL.
R.H.
VS. JENNIFER VELEZ, ETC.
C.B.
VS. JENNIFER VELEZ, ETC.
A-5714-10T1;
A-5803-10T2; A-5804-10T1 (CONSOLIDATED)
In
these consolidated administrative appeals that involve publicly-funded medical
assistance programs, we affirm decisions of the Director of the Division of
Medical Assistance and Health Services.
Specifically, we uphold the Director's determinations to deny
appellants' applications to continue to receive healthcare benefits after
becoming ineligible due to increased incomes. 06-13-12
S.K. VS. J.H. A-1358-11T2
S.K.
VS. J.H. A-1358-11T2
Plaintiff
brought this suit pursuant to the Prevention of Domestic Violence Act, N.J.S.A.
2C:25-17 to -35, as a result of being atrociously assaulted by defendant, who,
along with
plaintiff,
was on a trip to Israel with approximately forty others. In seeking to prove
the existence of a "dating relationship," plaintiff was able to show
only that, on the
evening
of the assault, she and defendant sat together, danced together, and were
together for a few hours at the bar. The trial court found a "dating
relationship" and entered a final
restraining
order.
In considering defendant's appeal, the
court deferred to the trial judge's finding that the parties' interactions constituted
a "date" but rejected the argument that this one
date
constituted the "dating relationship" required by the Act. Although
the Legislature did not expressly define what it meant by a "dating
relationship," the court found from the majority of those other states
that have defined the term that a "dating relationship" is a romantic
social relationship, which is further defined by its frequency and duration but
which excludes casual or ordinary fraternization between two individuals in a
business or social context. As a result of this generally accepted meaning of
"dating relationship," the court held that a single date was
insufficient and reversed. 06-06-12
HOUSE OF FIRE CHRISTIAN CHURCH VS. ZONING BOARD OF ADJUSTMENT OF THE CITY OF CLIFTON, ET AL. A-6128-10T1
HOUSE
OF FIRE CHRISTIAN CHURCH VS. ZONING BOARD OF ADJUSTMENT OF THE CITY OF CLIFTON,
ET AL. A-6128-10T1
We
dismiss the appeal because the order appealed from is interlocutory, the trial
court improvidently certified the order as final, and the unresolved issues are
best fully addressed in the Law Division before appellate review is undertaken.
In balancing the needs of the individual litigants against the firm judicial
policy of avoiding piecemeal litigation, we conclude that the public interest
is best served by the matter returning to
the Law Division for a complete and final disposition of all issues as to all
parties. 06-01-12
IN RE PELVIC MESH/GYNECARE LITIGATION A-5685-10T4
IN
RE PELVIC MESH/GYNECARE LITIGATION
A-5685-10T4
The
trial court exceeded its discretion in this multi-plaintiff, jointly case-managed
litigation by ordering that defendants were barred from retaining as an expert
witness or
consulting
with any physician who has at any time treated one or more of the several
hundred plaintiffs. The
"litigation interests" of a current or past patient are not
synonymous with the "medical interests" of patients, which physicians
are ethically bound to pursue and support. Defendants' proposed protocol and protective order would
address any potential issue of physician-patient privilege, which was
essentially waived in this litigation.
Judge
Sabatino's concurrence would reverse the trial court's order on the ground that
the disqualification provisions are overbroad and unduly burdensome on the
defense, particularly in light of the number of potential defense experts that
were or will be disqualified. 06-01-12
CATHERINE ZEHL VS. CITY OF ELIZABETH BOARD OF EDUCATION, ET AL. A-1296-11T3
CATHERINE
ZEHL VS. CITY OF ELIZABETH BOARD OF EDUCATION, ET AL.
A-1296-11T3
This
interlocutory appeal, where we review the propriety of the appointment of a
discovery master based on extraordinary circumstances under Rule 4:41-1,
requires us to reconcile and harmonize two significant policies: 1) the continuing need for and use of
available tools and procedures to ensure that litigation is conducted in an orderly
and efficient manner to achieve a just result; and 2) the recognition and safeguarding
of unfettered judicial access for litigants prosecuting remedial actions
brought pursuant to the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to
-42, and the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A.
34:19-1 to -8.
While these two policies generally
partner well, where the posture of the litigation warrants the use of a
discovery master, these policies may conflict. We conclude that in
actions
brought pursuant to the LAD and CEPA, in finding extraordinary circumstances as
grounds for appointing a discovery master, the trial judge must consider the
remedial
nature of the LAD and CEPA litigation as well as the ability of litigants
to absorb the costs of such relief.
The judge must consider that the appointment of a discovery master in
fee- shifting remedial cases, which by their very nature oftentimes involve
litigants with limited resources, may impose a cost burden on litigants that
creates a de facto bar to their access to the justice system. The trial judge failed to consider
these factors here. We reverse and
remand. 05-31-12
MANAHAWKIN CONVALESCENT VS. FRANCES O'NEILL AND FRANCES O'NEILL, ETC., VS. BROADWAY HEALTH CARE MANAGEMENT, LLC, ET AL. A-0841-11T4
MANAHAWKIN
CONVALESCENT VS. FRANCES O'NEILL AND
FRANCES
O'NEILL, ETC., VS. BROADWAY HEALTH CARE
MANAGEMENT,
LLC, ET AL.
A-0841-11T4
The
complaint captioned Manahawkin Convalescent v. Frances O'Neill was
dismissed. This appeal pertains to
the third-party action filed by Frances O'Neill, in her capacity as Executrix
of the Estate of Elise Hopkins v. Broadway Health Care Management, LLC, et al.
The
issue presented in this appeal is whether the Rehabilitation and Nursing Home
Admission Agreement required to be signed prior to plaintiff's mother Elise
Hopkins' admission to Manahawkin Convalescent Center violated the Nursing Home
Act,
N.J.S.A.
30:13-1 to -17, the Truth-in-Consumer Contract, Warranty and Notice Act,
N.J.S.A. 56:12-14 to -18, and the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to
-20. The narrower issue is whether
the nursing home's lawsuit filed against the
plaintiff
as the responsible party, to collect the outstanding debt owed for services
rendered for her mother's care, violates the Consumer Fraud Act.
We
recognized the long-standing "learned professional" exception to the
Consumer Fraud Act that proscribes consumer protection actions against certain
types of professionals or
industries
that are regulated by separate state or federal agencies, where such regulation
could conflict with regulation under the CFA. The Supreme Court held in certain
instances separate agencies with concurrent regulatory jurisdiction and control
may create conflicting determinations, rulings and regulations affecting the
identical subject matter.
Hospital
billing activities have been found to be within the learned professional exception
due to state and federal regulations associated with the receipt of Medicaid
and Medicare
funding. Applying that rule
of law here, we determine that defendant's nursing home is similarly regulated
and as such, their billing services fall within the "learned
professional" exception of
the CFA. 5-31-12
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. T.S. IN THE MATTER OF I.S. AND V.S. A-3012-10T3
NEW
JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. T.S. IN THE MATTER OF I.S. AND V.S. A-3012-10T3
ROBERT B. BEIM, ET AL. VS. TREVOR R. HULFISH, ET AL. A-5947-10T4
ROBERT
B. BEIM, ET AL. VS. TREVOR R. HULFISH, ET AL. A-5947-10T4
SWARNLATA KHANDELWAL, ET AL. VS. ZURICH INSURANCE CO., ET AL. VS. LALITKUMAR KHANDELWAL A-2620-10T2
SWARNLATA
KHANDELWAL, ET AL. VS. ZURICH INSURANCE CO., ET AL. VS. LALITKUMAR KHANDELWAL A-2620-10T2
In
the context of automobile insurance provided for car rentals, we held that an
intra-family exclusion is void as against public policy even though it is
included in an optional,
separate policy rather than the basic coverage policy that comes with
the rental. 05-29-12
IN THE MATTER OF MARTIN CARLUCCIO, SAFETY SPECIALIST TRAINEE, DMV (S0599J), MOTOR VEHICLE COMMISSION A-5219-09T1
IN
THE MATTER OF MARTIN CARLUCCIO, SAFETY SPECIALIST
TRAINEE, DMV (S0599J), MOTOR VEHICLE
COMMISSION
A-5219-09T1
Appellant
was disqualified from a list of eligible candidates for the position of Safety
Specialist Trainee with the Motor Vehicle Commission (MVC) because of a 1999
conviction for attempted aggravated assault. Appellant appealed to the
Civil
Service Commission and argued, among other things, that the Rehabilitated
Convicted Offender Act (the RCOA), N.J.S.A. 2A:168A-1 to -16, controlled, and a
certificate issued by the State Parole Board pursuant to the RCOA presumptively
demonstrated his rehabilitation and eligibility for employment.
The Civil Service Commission denied
appellant's appeal, concluding that the RCOA did not apply because the position
permitted "access to sensitive information that could threaten
the
public health, welfare, or safety," N.J.S.A. 2A:168A- 7(c)(1), and
therefore was not "public employment" subject to the provisions of
the RCOA.
Appellant sought reconsideration and
furnished, among other things, a certificate issued by the Parole Board
pursuant to the RCOA that was specific to the position of Safety Specialist
Trainee. The motion was denied.
We discussed the recent amendments to
the RCOA, and specifically concluded that "[n]otwithstanding any law to
the contrary," N.J.S.A. 2A:168A-7(a), a certificate issued pursuant to
N.J.S.A. 2A:168A-8 is the legislatively-chosen mechanism to "reliev[e]
disabilities, forfeitures or bars" to public employment arising from
certain prior criminal convictions.
Because the Commission failed to consider the effect of the Parole
Board's determination and the preeminent role the Legislature delegated to the
Parole Board under the RCOA, we remanded the matter for further proceedings.
05-25-12
CORRECTIONAL MEDICAL SERVICES, INC. VS. STATE OF NEW JERSEY, ET AL. A-5334-10T4
CORRECTIONAL
MEDICAL SERVICES, INC. VS. STATE OF NEW
JERSEY,
ET AL.
A-5334-10T4
We
hold that documents generated by the State in connection with its investigation
of compliance by Correctional Medical Services (CMS) with the terms of its
contract with the State, its determination to assess liquidated damages against
CMS, and its computation of such damages are not protected from discovery in a
breach of contract action instituted by CMS by either the deliberative process
or the official information privileges. 05-22-12
MARTIN E. O'BOYLE VS. BOROUGH OF LONGPORT, ET AL. A-2698-10T2
MARTIN
E. O'BOYLE VS. BOROUGH OF LONGPORT, ET AL.
A-2698-10T2
JOSEPHINE GABRIELE, ET AL. VS. LYNDHURST RESIDENTIAL COMMUNITY, L.L.C., ET AL. A-5257-10T3
JOSEPHINE
GABRIELE, ET AL. VS. LYNDHURST RESIDENTIAL COMMUNITY, L.L.C., ET AL. A-5257-10T3
DOCK STREET SEAFOOD, INC., ET AL. VS. CITY OF WILDWOOD, ET AL. A-4411-10T4
DOCK
STREET SEAFOOD, INC., ET AL. VS. CITY OF WILDWOOD, ET AL. A-4411-10T4
In
this inverse condemnation action involving a property in a redevelopment zone,
plaintiff appeals from a judgment in favor of defendant following a bench
trial. Judge Michael Winkelstein
found plaintiff's failure to file a redevelopment application
for
its property precluded its inverse condemnation claims and purported comments
by individual municipal officials that no building permits would be issued to
the property owners did not excuse plaintiff's obligation to exhaust
administrative remedies; plaintiff's continued use of the property for the same
purpose as when purchased and its rejection of an offer to purchase by the
redeveloper belied its claim of destruction of all beneficial use; and
defendant's inability to redevelop the area despite diligent attempts did not
significantly interfere with plaintiff's property rights. We affirm substantially for
the reasons set forth by Judge Winkelstein in his comprehensive written
opinion and supplemental letter opinion, which we now publish. 05-18-12
NORTH HALEDON FIRE COMPANY NO. 1, JOHN BLEEKER AND DANIEL STEVENSON VS. BOROUGH OF NORTH HALEDON AND LINCOLN NATIONAL CORPORATION D/B/A LINCOLN FINANCIAL GROUP A-2918-10T4
NORTH
HALEDON FIRE COMPANY NO. 1, JOHN BLEEKER AND DANIEL STEVENSON VS. BOROUGH OF
NORTH HALEDON AND LINCOLN NATIONAL CORPORATION D/B/A LINCOLN FINANCIAL GROUP
A-2918-10T4
The
Emergency Services Volunteer Length of Service Award Program Act, N.J.S.A.
40A:14-183 to -193, allows a county or municipality to make annual
contributions to active volunteer members of emergency service organizations
operating under their respective jurisdictions if the member earns points for participating
in certain activities. The Act permits a county or municipality to require
members of its volunteer fire department
to earn a minimum number of points for fire department responses as a
condition for the annual contribution; however, the municipality did not impose
such a condition in its implementing ordinance. 05-16-12
IN THE MATTER OF THE APPEAL OF LANGAN ENGINEERING & ENVIRONMENTAL SERVICES, INC. A-2145-11T3
IN
THE MATTER OF THE APPEAL OF LANGAN ENGINEERING &
ENVIRONMENTAL
SERVICES, INC.
A-2145-11T3
A
section of the Campaign Contributions and Expenditure Reporting Act, N.J.S.A.
19:44A-20.14, provides that a business entity is disqualified from the award of
a state contract if the
firm has made a political contribution within the eighteen-month period
immediately preceding the "commencement of negotiations." In the
context of publicly-bid contracts, we construe the term "commencement of
negotiations" to be the date the bid was submitted. 05-15-12
EDIE BRITMAN SAURO VS. FRANK SAURO IN THE MATTER OF BUDD LARNER, P.C. A-2735-09T3
EDIE
BRITMAN SAURO VS. FRANK SAURO IN THE MATTER OF BUDD
LARNER,
P.C.
A-2735-09T3
The law firm of Budd Larner,
P.C., one of three firms that represented plaintiff during this protracted
matrimonial case, appeals the Family Part's equitable distribution award,
arguing
that the manner in which the court allocated the parties' marital assets
negatively affected the firm's attorney charging lien pursuant to N.J.S.A.
2A:13-5.
Invoking
its parens patriae responsibility, the Family Part established a college trust
account by allocating money that would have otherwise been subject to equitable
distribution,
took
action to ensure that defendant honored his support obligation, and set aside a
modest amount to permit plaintiff to acquire skills to enter the labor force
independent of defendant's support.
We
affirm and hold that the Family Part's actions were within its discretionary
authority and in keeping with its parens patriae responsibility. Dedicating these funds towards a
specific future purpose before the entry of final judgment was not
inconsistent with the protections afforded to attorneys in N.J.S.A.
2A:13-5. The lien attaches only to
funds available to the parties at the time of the final disposition of the
case. 05-14-12
GREGORY LASKY AND ADVOCATES FOR DISABLED AMERICANS (AFDA) VS. BOROUGH OF HIGHTSTOWN A-5256-10T1
GREGORY
LASKY AND ADVOCATES FOR DISABLED AMERICANS
(AFDA)
VS. BOROUGH OF HIGHTSTOWN
A-5256-10T1
In
a public accommodation disability discrimination claim against a municipality
under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49,
alleging an overall lack
of
access, we hold that an advance request for an accommodation from the disabled
individual is not a precondition to filing suit.
We distinguish, as requiring such
notice, those claims alleging a failure to reasonably accommodate and account
for making specific adaptations required by the individual's
disability,
that is not equivalent to a facility's general unavailability on prohibited grounds.
05-11-12
GREGORY LASKY AND ADVOCATES FOR DISABLED AMERICANS (AFDA) VS. MOORESTOWN TOWNSHIP A-2742-10T3
GREGORY
LASKY AND ADVOCATES FOR DISABLED AMERICANS
(AFDA)
VS. MOORESTOWN TOWNSHIP
A-2742-10T3
CARMENA STONEY AND LINDA VANDEUSEN VS. MAPLE SHADE TOWNSHIP A-1777-10T3
CARMENA
STONEY AND LINDA VANDEUSEN VS. MAPLE SHADE
TOWNSHIP
A-1777-10T3
At
issue is whether a trial court may deny injunctive relief upon a jury finding
of access discrimination under Title II of the Americans with Disabilities Act (ADA),
42 U.S.C.A. §§ 12101-12213, and the New Jersey Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -49.
We hold that although injunctive relief
is authorized by both the ADA and LAD, it does not automatically follow from a breach
of either statute. Instead, where
a party has
demonstrated
actual success on the merits, a court must balance three factors to determine
whether injunctive relief is appropriate: (1) the threat of irreparable harm to
the movant;
(2)
the harm to be suffered by the non-moving party if the injunction is granted;
and, most significantly, (3) the public interest at stake, which strongly
favors mandating
accessibility.
Moreover, irreparable harm to the
disabled individual from a denial of access should be presumed in cases
involving facilities built or "altered" after January 26, 1992, the
effective date of Title II's implementing regulations, which mandate
compliance with specific architectural standards. 05-11-12
D. S. VS. CELGENE CORPORATION AND CVS/CAREMARK CORPORATION A-2685-10T2
D. S. VS. CELGENE CORPORATION AND CVS/CAREMARK
CORPORATION
A-2685-10T2
Plaintiff
filed a complaint alleging violations of the Conscientious Employee Protection
Act (CEPA), N.J.S.A. 34:19-1 to -14, well beyond CEPA's one-year limitation
period, N.J.S.A. 34:19-5, and while he had a breach of contract action based on
the same facts pending in Texas. Primarily because plaintiff's delay is attributable to his initial
selection of the Texas forum and his subsequent decision to pursue a remedy for
a CEPA violation in New Jersey after an unfavorable choice of law determination
by a court in Texas, we conclude that the doctrines of substantial compliance
and equitable tolling do not permit him to proceed in New Jersey. 05-09-12
ETHEL GRAY VS. CALDWELL WOOD PRODUCTS, ET AL. A-0120-11T1
ETHEL
GRAY VS. CALDWELL WOOD PRODUCTS, ET AL.
A-0120-11T1
In
this action, plaintiff was injured as a result of a slip and fall on ice on the
sidewalk in front of defendant's vacant commercial building. In the appeal, the court considered
whether
the commercial property owner owed a duty to the plaintiff. The trial court entered summary
judgment in favor of defendant finding that sidewalk liability did not apply
because, as a vacant building, the property was not being used at the time of
the accident. In reversing, the
court determined that the commercial property was subject to sidewalk liability
because
the property had the capacity to generate income and did, in fact, spread the
risk of loss by maintaining commercial property insurance. The court also held
that defendant had a duty to remove snow and ice from sidewalks abutting its property.
05-07-12
ADELE KONOP, ET AL. VS. ELLEN J. ROSEN, M.D. A-2908-10T1
ADELE
KONOP, ET AL. VS. ELLEN J. ROSEN, M.D.
A-2908-10T1
In this medical malpractice action, the
factual support for plaintiff's expert's opinion regarding defendant's
deviation rested solely upon a notation that appeared in a hospital
consultation
report prepared, not by defendant, but by a resident doctor in the emergency room. Following a N.J.R.E. 104 hearing, the
judge concluded that the notation should be
redacted
from the report because it was hearsay, not subject to any exception. He subsequently granted defendant
summary judgment.
We reversed, concluding that there was
sufficient circumstantial evidence to permit a reasonable jury to conclude by a
preponderance of the evidence that the notation was a
statement
attributable to defendant, thus admissible under N.J.R.E. 803(b)(1) ("[a]
statement offered against a party which is . . . the party's own
statement").
We further concluded that although
N.J.R.E. 104(a) reserves to the judge determinations as to whether preliminary "condition[s]"
of "admissibility," as opposed to relevancy, have
been
fulfilled, when the only condition of admissibility is resolution of a single
disputed fact, the exercise of the judge's discretion is limited. In such circumstances, the judge
is not the ultimate fact finder, but, rather, must decide only whether
the evidence is sufficient to allow a jury to decide the disputed fact in favor
of the proponent of the evidence. 04-25-12
MYRON COWHER VS. CARSON & ROBERTS, ET AL. A-4014-10T1
MYRON
COWHER VS. CARSON & ROBERTS, ET AL.
A-4014-10T1
Reversing
summary judgment in favor of plaintiff's employer and two co-workers, we hold
that plaintiff, a non-Jew, presented a prima facie case of discrimination on
the basis of perceived religious affiliation through videotapes and admissions establishing
that the co-workers had regularly uttered anti-Semitic epithets and engaged in
other anti-Semitic conduct directed at plaintiff. In reaching that conclusion, we found a presumption to exist
that defendants' conduct was spurred by plaintiff's perceived status as a
Jew.
We
also found prima facie evidence that defendants' conduct was severe or
pervasive enough to make a reasonable person believe that the conditions of
plaintiff's employment were altered and that the working environment had been
made hostile or abuse. We held in
that regard that the conduct should be evaluated from the perspective of a
reasonable Jew, and that the fact that plaintiff was not Jewish was relevant
only to his damages.
04-18-12
JAMES BROOKS VS. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM A-3778-10T3
JAMES
BROOKS VS. BOARD OF TRUSTEES, PUBLIC EMPLOYEES'
RETIREMENT
SYSTEM
A-3778-10T3
POTOMAC INSURANCE COMPANY OF ILLINOIS VS. PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, ET AL. A-3164-09T2
POTOMAC
INSURANCE COMPANY OF ILLINOIS VS. PENNSYLVANIA
MANUFACTURERS'
ASSOCIATION INSURANCE COMPANY, ET AL.
A-3164-09T2
In
this opinion, we determined that one co-insurer's settlement of coverage litigation
with the insured does not necessarily bar another co-insurer's claim against
the settling co-insurerfor defense costs in the underlying action. However, we also hold that the
attorneys who filed and defended the coverage suit had an obligation under the
entire controversy doctrine to disclose the potential claim for defense costs
by the non-party co-insurer.
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