Preparing for the Criminal and Traffic Case

FRANCIS CHIARELLO VS. BOARD OF TRUSTEES, PUBLIC EMPLOYEES RETIREMENT SYSTEM A-1199-11T1

FRANCIS CHIARELLO VS. BOARD OF TRUSTEES, PUBLIC

EMPLOYEES RETIREMENT SYSTEM

A-1199-11T1

Appellant sought an ordinary disability retirement from one

PERS position with the intention to retain an elected office,

another PERS position, in reliance on N.J.S.A. 43:15A-47.2,

which authorized a multiple PERS member's retention of an

elected office upon retirement from another PERS position. The

court held, among other things, that appellant was not required

to terminate his mayoral position even though N.J.S.A. 43:15A-

47.2 was repealed before his retirement application was ruled

upon. The court reasoned that simple fairness and the principle

that favors prospective application of statutes required that

appellant's eligibility to retain his position as mayor should

be governed by the laws existing at the time of the application,

particularly when appellant applied for a disability retirement

four months before the repeal. The court, however, remanded for

a determination of whether appellant could be totally and

permanently disabled from one position without being similarly

disabled from the other. 12-20-12 

L & W SUPPLY CORPORATION D/B/A BUILDING SPECIALTIES VS JOE DESILVA T/D/B/A DESILVA CONTRACTORS, ET AL. A-2960-10T2

 L & W SUPPLY CORPORATION D/B/A BUILDING SPECIALTIES VS

JOE DESILVA T/D/B/A DESILVA CONTRACTORS, ET AL.

A-2960-10T2

The Construction Lien Law, N.J.S.A. 2A:44A-1 to -38, and

Craft v. Stevenson Lumber Yard, Inc., 179 N.J. 56, 63 (2004),

impose an obligation upon a materials supplier that files a

construction lien to show that it applied payments correctly

against several open accounts of a contractor that purchased

materials for different building jobs. This opinion elaborates

upon that obligation and holds that, when the contractor has not

provided specific, reliable instructions as to the allocation of

its payment based on the source of the payment funds, or when a

reasonable supplier should suspect that the contractor has not

used an owner's funds to pay for materials supplied for that

owner, then the supplier must make further inquiry and attempt

to verify the source of the payment funds so that it can

allocate them to the correct accounts. 12-19-12

STEPHEN E. BURKE VS. RAYMOND BRANDES, ET AL. A-3051-11T3

STEPHEN E. BURKE VS. RAYMOND BRANDES, ET AL.
          A-3051-11T3

Reversing the Law Division, we held that a request of the Governor's Office for records concerning EZ Pass benefits afforded to retirees of the Port Authority, including correspondence between the Office of the Governor and the Port Authority, was not "overbroad" under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.  12-07-12  

IN THE MATTER OF THE VETO BY GOVERNOR CHRIS CHRISTIE OF THE MINUTES OF THE NEW JERSEY RACING COMMISSION FROM THE JUNE 29, 2011 MEETING AND THE ALLOCATION ACTION TAKEN AT THAT MEETING BY THE NEW JERSEY RACING COMMISSION A-6028-10T3

IN THE MATTER OF THE VETO BY GOVERNOR CHRIS CHRISTIE OF THE MINUTES OF THE NEW JERSEY RACING COMMISSION FROM THE JUNE 29, 2011 MEETING AND THE ALLOCATION ACTION TAKEN AT THAT MEETING BY THE NEW JERSEY RACING COMMISSION

A-6028-10T3

The Thoroughbred Breeders' Association of New Jersey (the TBA) appealed from Governor Chris Christie's veto of the minutes of a meeting of the New Jersey Racing Commission. The Commission decided to distribute $15 million collected by the Casino Redevelopment Authority (CRDA) for the purpose of augmenting "purse monies" at New Jersey racing venues. The TBA challenged the constitutionality of the legislative scheme, adopted as part of the creation of the Atlantic City Tourism District, that expressly permitted the Commission to request the monies for this purpose and the CRDA to distribute them, but, at the same time, preserved the Governor's power to veto the Commission's minutes, thereby rendering any action taken null and void.
We examined the various constitutional arguments made by the TBA and rejected them.
The TBA also argued that, even if the legislative scheme was constitutional and the Governor's veto permissible, his action was arbitrary, capricious and unreasonable. We concluded that our usual standard of review applicable to executive agency action did not apply to the discretionary actions of the Governor pursuant to an express legislative grant. 12-07-12

ENID SANTIAGO VS. NEW YORK & NEW JERSEY PORT AUTHORITY, ET AL. A-5773-10T1

ENID SANTIAGO VS. NEW YORK & NEW JERSEY PORT
          AUTHORITY, ET AL.

A-5773-10T1

Plaintiff, a provisional police officer with the Port Authority Police Department, was terminated after what, she alleged, was a sham internal affairs investigation. She alleged violations of the LAD, CEPA and the Civil Rights Act (CRA). The judge dismissed the complaint, finding lack of subject matter jurisdiction based upon plaintiff's failure to provide notice prior to filing suit as required by N.J.S.A. 32:1-163 (requiring sixty days notice prior to filing suit).
Plaintiff argued that because New Jersey and New York adopted "complimentary" legislation addressing workplace discrimination and whistleblowing, and because no notice was required under New Jersey's Tort Claims Act prior to filing suit under the LAD, CEPA or the CRA, she need not have provided pre- suit notice to the Port Authority.
We affirmed. Without reaching a conclusion as to plaintiff's "complimentary" legislation argument, we decided that the Port Authority's waiver of sovereign immunity and limited consent to suit was expressly conditioned on pre- litigation notice. Given the failure to provide such notice, the court lacked subject matter litigation, regardless of the nature of plaintiff's claims. 12-05-12  

FRANK R. CIESLA O/B/O THE VALLEY HOSPITAL VS. NEW JERSEY DEPARTMENT OF HEALTH AND SENIOR SERVICES, ET AL. A-5309-10T1

FRANK R. CIESLA O/B/O THE VALLEY HOSPITAL VS. NEW JERSEY
          DEPARTMENT OF HEALTH AND SENIOR SERVICES, ET AL.
          A-5309-10T1

We affirm the Government Records Council's ("GRC's") ruling that a draft report prepared by staff within the Department of Health concerning a hospital's then-pending, but ultimately withdrawn, application for a Certificate of Need comprises "deliberative material." Such material is excluded from the statutory definition of an obtainable "government record" under the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1.1. We hold that the OPRA exemption for deliberative material is absolute, despite prior opinions that have suggested or presumed that the OPRA exemption is qualified.
We further hold that the GRC's jurisdiction is confined to OPRA matters and that it lacks authority to adjudicate common- law claims for access to public records. Under the common law, the deliberative process privilege is not absolute but qualified. Exercising our original jurisdiction, we reject appellant's common-law claim for access to the Department's draft report because the asserted need for disclosure does not

outweigh  the  strong  public  policy  in  promoting  robust  and
confidential internal advice to a governmental decision-maker. 
12-04-12  

AUGUSTINE W. BADIALI VS. NEW JERSEY MANUFACTURERS INSURANCE GROUP A-2795-11T3

AUGUSTINE W. BADIALI VS. NEW JERSEY MANUFACTURERS

INSURANCE GROUP

A-2795-11T3

In a prior appeal, the court considered whether defendant

New Jersey Manufacturers Insurance Group (NJM), an uninsured

motorist (UM) insurer -- barred by its policy from rejecting an

arbitration award under $15,000 -- was entitled to reject a

$29,148.62 award when only liable to pay half. In adhering to

D'Antonio v. State Farm Mut. Auto. Ins. Co., 262 N.J. Super. 247

(App. Div. 1993), which considered the same situation in an

underinsured motorist (UIM) setting, the court concluded that

the insurer was bound to the award and, therefore, affirmed a

judgment that precluded NJM's demand for a trial de novo.

Badiali v. N.J. Manufacturers Ins. Grp., No. A-4870-09 (App.

Div. Feb. 28, 2011). In this subsequent action, plaintiff

sought damages from NJM, arguing that NJM litigated in bad faith

in advocating that its policy did not preclude a rejection of

the arbitration award.

The court affirmed the summary judgment entered in favor of

NJM, holding that NJM's position was fairly debatable because it

found support in an earlier unpublished decision of this court.

RAYMOND TARABOKIA, JR., ET AL. VS. STRUCTURE TONE A-3822-11T2

RAYMOND TARABOKIA, JR., ET AL. VS. STRUCTURE TONE

A-3822-11T2

We affirmed the summary judgment dismissal of a negligence

action by an employee of a subcontractor against the general

contractor for a work-site injury, finding, under the

circumstances presented, that the scope of the duty owed by the

general or prime contractor does not encompass the manner and

means of using equipment selected, supplied and controlled by

the subcontractor.  11-16-12 

DEUTSCHE BANK NATIONAL TRUST COMPANY VS. CONRAD D. RUSSO AND IRENE RUSSO A-2437-11T1

DEUTSCHE BANK NATIONAL TRUST COMPANY VS. CONRAD D.

RUSSO AND IRENE RUSSO

A-2437-11T1

We affirmed the trial court's order denying the foreclosure

defendants' 2011 motion to vacate a default judgment that was

entered in 2009. Defendants contended that plaintiff lacked

standing because it filed the foreclosure complaint before

obtaining an assignment of the mortgage, although it obtained an

assignment before the judgment was entered. Defendants further

argued that because plaintiff lacked standing, the trial court

lacked subject matter jurisdiction over the case. We concluded

that, due to defendants' unexcused, years-long delay in

asserting the standing defense, dismissal of the foreclosure

complaint would not be an appropriate remedy. Therefore, in this

context, lack of standing would not constitute a meritorious

defense for purposes of the motion to vacate the foreclosure

judgment. We also held that, in our State court system, standing

is not a jurisdictional issue. Therefore, a foreclosure judgment

obtained by a party that lacked standing is not "void," and

defendants' reliance on Rule 4:50-1(d)(judgments void for lack

of jurisdiction) was misplaced.  11-14-12 

CRYSTAL ICE-BRIDGETON, LLC VS. CITY OF BRIDGETON, ET AL. A-1687-11T1

CRYSTAL ICE-BRIDGETON, LLC VS. CITY OF BRIDGETON, ET

AL.

A-1687-11T1

In affirming summary judgment to various municipal

defendants and a private contractor, we analyzed whether a

property owner was entitled to notice before the contractor

demolished the remainder of the owner's fire-damaged building.

We concluded that the notice requirements contained in N.J.A.C.

5:23-2.32(b)(2) and the summary hearing safeguards provided in

N.J.S.A. 40:48-2.5(f)(2) were inapplicable because the municipal

fire chief, acting pursuant to N.J.S.A. 40A:14-54.1, had "sole

authority" to direct the ongoing fire operations, including the

demolition of the building, in order to protect the lives and

property endangered by the fire, and he had not yet declared the

fire to be out. We also ruled that the municipal defendants,

and the private contractor who acted at their direction, were

immune from liability in these circumstances pursuant to the

Tort Claims Act, N.J.S.A. 59:1-1 to 12-3.  11-13-12 

ARLENE KANDRAC, ET AL. VS. MARRAZZO'S MARKET AT ROBBINSVILLE, ET AL

ARLENE KANDRAC, ET AL. VS. MARRAZZO'S MARKET AT

ROBBINSVILLE, ET AL.

In this appeal from an order granting summary judgment, we

consider whether a commercial tenant in a multi-tenant shopping

center owes a duty to its patrons to maintain an area of the

parking lot that the landlord is contractually obligated to

maintain. We hold that, although the determination of a duty

remains a fact-sensitive issue, as a general rule, the

commercial tenant does not have such a duty. 11-05-12 

DAVID L. HAWK VS. NEW JERSEY INSTITUTE OF TECHNOLOGY, ET AL. A-2059-11T3

 DAVID L. HAWK VS. NEW JERSEY INSTITUTE OF TECHNOLOGY,

ET AL.

A-2059-11T3

A tenured professor at New Jersey Institute of Technology (NJIT)

brought an action in the General Equity Part seeking to enjoin

pending "detenure" proceedings against him, claiming deprivation

of procedural due process in the university's internal

investigation of his conduct. The action was dismissed for

failure to exhaust administrative remedies, and we affirmed.

The assertion of a constitutional claim is but one factor

to be considered in determining whether judicial intervention is

justified, and in order to be relieved of the exhaustion

requirement, that claim must be a colorable one and not

dependent on facts to be developed at the administrative

proceeding, or capable of being vindicated therein.

Here, plaintiff's constitutional claim does not rise to the

level to warrant interlocutory judicial interference. The full

panoply of procedural due process rights does not attend the

administrative investigative stage and the process actually

afforded plaintiff pre-hearing was more than adequate. 10-29-12

NEW JERSEY SCHOOLS DEVELOPMENT AUTHORITY VS. JOSEPH MARCANTUONE, ET AL. A-1868-10T3

 NEW JERSEY SCHOOLS DEVELOPMENT AUTHORITY VS. JOSEPH

MARCANTUONE, ET AL.

A-1868-10T3

Plaintiff New Jersey Schools Development Authority provided

the funding for the City of East Orange to acquire by

condemnation environmentally contaminated real property owned by

defendants Joseph Marcantuone and Robert Gieson. Pursuant to

Housing Authority of New Brunswick v. Suydam Investors, 177 N.J.

2 (2003), funds representing the estimated cost of remediation

of the land were held in escrow pending a final determination on

liability under the New Jersey Spill Compensation and Control

Act, N.J.S.A. 58:10-23.11 to -23.24.

Relying on our decision in White Oak Funding, Inc. v.

Winning, 341 N.J. Super. 294 (App. Div.), certif. denied, 170

N.J. 209 (2001), the trial court held defendants were not liable

as a matter of law for the cost of remediation because they were

not "in any way responsible" for the contamination. The court

also held that defendants were not the current owners of the

property at the time the contamination was discovered because

plaintiff had previously been vested with title as condemnor

under N.J.S.A. 20:3-19.

We reverse the trial court and hold that our decision in

White Oak was in part implicitly superseded by the 2001

amendments to the Spill Act creating the "innocent purchaser"

defense codified at N.J.S.A. 58:10-23.11g(d)(5). We remand for

the court to determine whether defendants can establish, by a

preponderance of the evidence, the four elements of the

"innocent purchaser" defense. We also hold that in a postcondemnation

proceeding to determine Spill Act liability under

Suydam, defendants are deemed the "current owners" of the

property, notwithstanding N.J.S.A. 20:3-19. 10-29-12

A.D.P. VS. EXXONMOBIL RESEARCH AND ENGINEERING COMPANY A-4806-10T4

A.D.P. VS. EXXONMOBIL RESEARCH AND ENGINEERING COMPANY

A-4806-10T4

Plaintiff, a long-term employee, voluntarily disclosed to

her employer that she was an alcoholic and was going to an inpatient

rehabilitation program. At the time of her disclosure,

plaintiff's job performance was satisfactory and she was not the

subject of any pending or threatened employment or disciplinary

action. Upon her return, the employer required her to agree to

conditions, including total abstinence and random alcohol

testing for a minimum of two years, as a condition of

employment. These conditions were not imposed pursuant to a

"last chance agreement" but, rather, were required by

ExxonMobil's Alcohol and Drug Use Policy. Her employment was

terminated nearly one year later when a breathalyzer test

revealed alcohol use. She filed suit, alleging discrimination

based upon her disability and wrongful termination.

In this appeal, we consider whether summary judgment was

properly granted to the employer. Viewing the record with

favorable inferences drawn in favor of the plaintiff, the

imposition of these conditions and the termination of

plaintiff's employment pursuant to the employer's policy

constituted direct evidence of discrimination. As a result, the

burden of persuasion shifted to the employer, requiring it to

show that the employment actions taken would have occurred even

if it had not considered plaintiff's disability, see McDevitt v.

Bill Good Builders, Inc., 175 N.J. 519, 525 (2003), a burden it

failed to satisfy as a matter of law. We therefore conclude

that summary judgment dismissing plaintiff's disability

discrimination claim was inappropriate. 10-26-12 

FRANCIS NATHANIEL CLARK VS. DENISE LOCKWOOD CLARK A-1147-11T1

FRANCIS NATHANIEL CLARK VS. DENISE LOCKWOOD CLARK

A-1147-11T1

We reversed the trial court's award of alimony, holding

defendant's long-term scheme to embezzle more than $345,000 from

the joint marital business while serving as the business's

bookkeeper, led to plaintiff's fault-based claim for divorce,

caused more than a mere economic impact upon the marital assets,

and demonstrated the rare case of egregious fault justifying

consideration of whether defendant's marital misconduct obviated

an award of alimony. 10-19-12 

Valeria Headen v. Jersey City Board of Education (A- 17-11; 068598)

 Valeria Headen v. Jersey City Board of Education (A-

17-11; 068598)

The Civil Service Act’s paid vacation leave provisions

apply to career service, non-teaching staff employees

of school districts that have opted to be part of the

civil service system, including ten-month employees

such as Valeria Headen. Because the Act and its

implementing regulations establish a floor for the

amount of leave to be provided to such employees and a

collectively negotiated agreement provided Headen with

more than the minimum paid vacation leave to which she

was entitled under the Act, this matter was properly

dismissed. 11-15-12

In the Matter of The Parentage of a Child By T.J.S. and A.L.S., h/w (A-130-10; 067805)

In the Matter of The Parentage of a Child By T.J.S.

and A.L.S., h/w (A-130-10; 067805)

The judgment of the Appellate Division is affirmed by

an equally divided Court. Absent adoption, the Act

does not recognize an infertile wife as the legal

mother of her husband’s biological child born to a

gestational carrier. The Act does no violate the

right to equal protection under Article I, paragraph I

of the New Jersey Constitution because the

distinctions drawn between an infertile husband and an

infertile wife are grounded in actual reproductive and

biological differences, which the Legislature may

consider in defining alternative means of creating

parenthood. 10-24-12