M.G. VS. S.M. (FM-12-0446-15, MIDDLESEX COUNTY AND STATEWIDE) (A-1290-17T1)

M.G. VS. S.M. (FM-12-0446-15, MIDDLESEX COUNTY AND STATEWIDE) (A-1290-17T1)

The court addresses and establishes the factors a trial court should consider in determining whether to make an equitable distribution of restricted stock units where the stock vests post-complaint and the employed spouse asserts the vesting is attributable to that spouse's future employment efforts.

The court holds that the party seeking to exclude assets from equitable distribution on such grounds bears the burden to prove the stock award was made for services performed outside of the marriage. That party must adduce objective evidence to prove the employer intended the stock to vest for future services and not as a form of deferred compensation attributable to the award date.

NJ HIGHLANDS COALITION V. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION (A-3180-14T1)

NJ HIGHLANDS COALITION V. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION (A-3180-14T1)

This opinion, decided on August 4, 2017, is being published at the request of the Supreme Court. Appellants N.J. Highlands Coalition and Sierra Club N.J. challenged a settlement agreement between the NJDEP and a developer relating to the development of a 204-unit inclusionary housing project in the Borough of Oakland. Pursuant to the settlement agreement, the NJDEP issued two freshwater general permits and a transition area waiver, which appellants also challenge. We held that the NJDEP correctly concluded the developer was entitled to an exemption under N.J.S.A. 13:20-28(a)(17), and the NJDEP's decision to approve the general permits and transition area waiver was not arbitrary, capricious, or unreasonable.

OASIS THERAPEUTIC LIFE CENTERS, INC. VS. PETER G. WADE, ET AL. (L-1287-17, MONMOUTH COUNTY AND STATEWIDE) (A-0711-17T3)

OASIS THERAPEUTIC LIFE CENTERS, INC. VS. PETER G. WADE, ET AL. (L-1287-17, MONMOUTH COUNTY AND STATEWIDE) (A-0711-17T3)

Plaintiff's complaint alleged that defendants' interference with plaintiff's efforts to purchase property for use as a group home for autistic individuals violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The court concluded, as the LAD makes clear, that it is, in fact, unlawful to discriminate against a buyer because of the disability of a person intending to live on the premises, even if the buyer does not fit within a protected class, N.J.S.A. 10:5-4.1, and that it is, with a discriminatory intent, unlawful to interfere with another's transaction, N.J.S.A. 10:5-12(n). In reversing the motion judge's dismissal of the complaint pursuant to Rule 4:6-2(e), the court also rejected the application of the Noerr-Pennington doctrine to the claim that defendants sabotaged plaintiff's efforts to secure a grant from the Monmouth Conservation Fund; that nonprofit foundation was not shown to be a governmental or quasi-governmental body.

N.J. Highlands Coalition and Sierra Club, N.J. v. New Jersey Department of Environmental Protection (079963) (Statewide) (A-32-17;

N.J. Highlands Coalition and Sierra Club, N.J. v. New Jersey Department of Environmental Protection (079963) (Statewide) (A-32-17; 079963) The judgment of the Appellate Division is affirmed substantially for the reasons expressed in the per curiam opinion. The Court adds modifying comments to clarify that the affirmance is based solely on a plain language reading of the Highlands Act that does not incorporate the definition of “final approval” contained in the separate but related MLUL.

IN THE MATTER OF REGISTRANT H.D. IN THE MATTER OF REGISTRANT J.M. (ML-98-07-0091 AND ML-98-17-0002, ESSEX COUNTY, SALEM COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) (A-5321-16T1/A-5322-16

IN THE MATTER OF REGISTRANT H.D. IN THE MATTER OF REGISTRANT J.M. (ML-98-07-0091 AND ML-98-17-0002, ESSEX COUNTY, SALEM COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) (A-5321-16T1/A-5322-16T1)

Within fifteen years of having been convicted of "sex offenses," see N.J.S.A. 2C:7-2(b), and sentenced to probation, each registrant was convicted of another offense. After fifteen offense-free years following those convictions, registrants moved to be relieved of their registration obligations pursuant to N.J.S.A. 2C:7-2(f), which provides in relevant part:

[A] person required to register under this act may make application to the Superior Court of this State to terminate the obligation upon proof that the person has not committed an offense within 15 years following conviction or release from a correctional facility for any term of imprisonment imposed, whichever is later, and is not likely to pose a threat to the safety of others.

The Law Division judges denied relief, concluding essentially that conviction for any offense within fifteen years of the conviction of or release from imprisonment for the underlying sex offense permanently barred relief.

The court reversed, concluding that although the statute was ambiguous, permanently barring relief was 1) contrary to the Legislature's intent and the remedial purposes of Megan's Law; and 2) inconsistent with N.J.S.A. 2C:43-6.4(c), which permits termination of community/parole supervision for life "upon proof . . . that the person has not committed a crime for [fifteen] years since the last conviction or release from incarceration, . . . and . . . is not likely to pose a threat to the safety of others if released from parole supervision."

JUAN MORALES-HURTADO VS. ABEL V. REINOSO, ET AL. (L-1450-13, (A-2120-15T3)

JUAN MORALES-HURTADO VS. ABEL V. REINOSO, ET AL. (L-1450-13, BERGEN COUNTY AND STATEWIDE) (A-2120-15T3) In this vehicular negligence action, the court holds that the cumulative impact of multiple errors, including defense counsel's improprieties, the trial court's denial of a directed verdict as to defendant's negligence, and the trial court's grant of defendant's in limine motion to bar plaintiff's life care expert, deprived plaintiff of a fair trial. The court reverses the order of judgment entered on the jury's verdict and remands for a n

R.L.U. VS. J.P. (FV-02-1615-17, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-4823-16T1)

R.L.U. VS. J.P. (FV-02-1615-17, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-4823-16T1)

The court reverses the Family Part order entered under the Sexual Assault Survivor Protection Act (SASPA), N.J.S.A. 2C:14-13 to -21. SASPA cannot be used to impose a restraining order on defendant based on conduct that occurred before SASPA's effective date. SASPA does not permit such retroactive application. The Family Part judge heard credible testimony from plaintiff that defendant had intercourse with her in 2005 when she was eleven. The Family Part judge correctly concluded the 2005 incident of intercourse was a sexual assault, however the 2005 assault was not a predicate act triggering the right to SASPA protection because SASPA was not signed into law until 2015.

NEW JERSEY TRANSIT CORPORATION, ETC. VS. SANDRA SANCHEZ AND CHAD SMITH (L-8504-16, BERGEN COUNTY AND STATEWIDE) (A-0761-17T3

NEW JERSEY TRANSIT CORPORATION, ETC. VS. SANDRA SANCHEZ AND CHAD SMITH (L-8504-16, BERGEN COUNTY AND STATEWIDE) (A-0761-17T3)

Plaintiff New Jersey Transit Corporation appealed from the summary judgment dismissal of its subrogation action against the tortfeasors for reimbursement of the workers' compensation benefits paid to an injured employee for wage loss and medical expenses resulting from a work-related automobile accident. Plaintiff did not sustain a permanent injury within the meaning of the limitation on lawsuit option under AICRA, and did not seek recovery from the tortfeasors. The motion judge held AICRA trumped the WCA, ruling that N.J.S.A. 39:6A-8(a) barred NJ Transit's claims because NJ Transit, as subrogee, stands in the shoes of the injured employee, and has no rights superior to the injured employee under AICRA. Since the injured worker was compensated by workers' compensation benefits for his medical expenses and wage loss; he suffered no uncompensated economic loss. The motion judge held NJ Transit's claim must be dismissed because AICRA bars claims for compensated economic damages.

The court reverses the summary judgment dismissal, holding the workers’ compensation carrier is permitted to pursue its Section 40 claim for reimbursement of the worker's compensation benefits paid to the injured employee against the third-party tortfeasors. If successful, the workers' compensation carrier would be reimbursed by the tortfeasors, subject to their right to indemnification from their own automotive insurers. Therefore, allowing such recovery does not conflict with AICRA's collateral source rule, N.J.S.A. 39:6A-6.

Regarding the interplay of the WCA and AICRA, where only workers' compensation benefits and PIP benefits are available, the primary burden is placed on workers' compensation pursuant to N.J.S.A. 39:6A-6. Where only PIP benefits and tortfeasor liability are involved, the primary burden is placed on the PIP carrier by N.J.S.A. 39:6A-12. However, where both workers' compensation benefits and the proceeds of a tort action have been recovered, the tort recovery is primary pursuant to N.J.S.A. 34:15-40(f). In turn, where workers' compensation benefits have been paid, but the injured employee has not sought or obtained recovery from the tortfeasor, the primary burden is placed on the tortfeasor.

RICHARD W. TULLY, JR. VS. PETER MIRZ (L-5951-16, BERGEN COUNTY AND STATEWIDE) (A-0241-17T1)

RICHARD W. TULLY, JR. VS. PETER MIRZ (L-5951-16, BERGEN COUNTY AND STATEWIDE) (A-0241-17T1)

Plaintiff, a shareholder in a closely-held corporation, brought an action against the only other shareholder, asserting both direct claims for breach of contract and breach of the covenant of good faith and fair dealing, and derivative shareholder claims alleging breach of fiduciary trust, mismanagement, conversion, and fraud. Following the conclusion of a bench trial, the trial judge dismissed the action in its entirety without prejudice for lack of standing.

The court reverses the dismissal of plaintiff's direct claims of breach of contract and breach of the covenant of good faith and fair dealing, and remands those claims to the trial court to render a decision on the merits, finding plaintiff had standing to pursue those direct claims.

The court rejects plaintiff's argument that the prior denial of defendant's motions to dismiss for failure to state a claim upon which relief may be granted constituted the law of the case. The court affirms the dismissal without prejudice of the remaining derivative claims because it is unable to determine from the record if allowing the derivative claims to proceed would prejudice the corporation's creditors.

ANTHONY MALACOW VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) (A-1587-17T3)

ANTHONY MALACOW VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) (A-1587-17T3)

The court remands to the Department of Corrections (DOC) for reconsideration and the articulation of appropriate reasons for the sanctions imposed on the inmate consistent with N.J.A.C. 10A:4-9.17(a) and Mejia v. New Jersey Department of Corrections, 446 N.J. Super. 369, 378-79 (App. Div. 2016). The court suggests the DOC amend its regulations so that particularized reasons for sanctions are provided in all future disciplinary matters.

ANNA BERMEO VS. MARIO BERMEO (FM-13-1076-14, MONMOUTH COUNTY AND STATEWIDE) (A-1312-17T1)

ANNA BERMEO VS. MARIO BERMEO (FM-13-1076-14, MONMOUTH COUNTY AND STATEWIDE) (A-1312-17T1)

In this appeal, plaintiff argues that she was entitled to have the post-judgment motion judge establish the marital lifestyle pursuant to Crews v. Crews, 164 N.J. 11 (2000) notwithstanding a waiver of that determination at the time the judgment of divorce was entered; and that she was entitled to an increase in her alimony payment. Affirming denial of her motion, the court rejected plaintiff's argument that the court was obligated to conduct a Crews analysis post-judgment because: their Property Settlement Agreement was recently entered; did not reserve such a determination; and was not the product of coercion or duress. Consequently, the court found no basis to impute a higher income to defendant and increase plaintiff's alimony payments.

METRO COMMERCIAL MANAGEMENT SERVICES, INC., ET AL. VS. NANCY VAN ISTENDAL (C-000036-16, BURLINGTON COUNTY AND STATEWIDE) (A-0275-17T4)

METRO COMMERCIAL MANAGEMENT SERVICES, INC., ET AL. VS. NANCY VAN ISTENDAL (C-000036-16, BURLINGTON COUNTY AND STATEWIDE) (A-0275-17T4)

In this appeal, defendant argued that she was an oppressed minority shareholder under N.J.S.A. 14A:12-7(1)(c) even though she contracted to be an employee at-will. After serving as plaintiff's Chief Financial Officer for thirteen years, she claimed that she had a reasonable expectation of continued employment and that her at-will designation was irrelevant and erroneous. A Consent Order entered by the parties in prior litigation between them validated their Shareholder Agreement and confirmed defendant's at-will status.

The court rejected defendant's reliance upon unpublished out-of-state cases as factually distinguishable and unpersuasive that defendant urged us to adopt for the proposition that an oppressed shareholder may have an expectation of continued employment. The court declined to do so, and affirmed the summary judgment dismissal of defendant's counterclaim on the basis that her at-will status was paramount.

INVESTORS BANK VS. JAVIER TORRES, ET AL. (F-001463-15, BERGEN COUNTY AND STATEWIDE) (A-3029-16T4)

INVESTORS BANK VS. JAVIER TORRES, ET AL. (F-001463-15, BERGEN COUNTY AND STATEWIDE) (A-3029-16T4)

Defendant challenged plaintiff's right to foreclose, arguing N.J.S.A. 12A:3-309 precluded the enforcement of a note, lost prior to the assignment of a concomitant mortgage, because plaintiff never owned or controlled the underlying debt. The court interpreted the statute as allowing the enforcement of a lost note where the assignor – which provided a lost-note affidavit to plaintiff – possessed the note and was entitled to enforce it when the loss occurred, and plaintiff proved the terms of the note and its right to enforce it.

P.H. VS. L.W. (FD-02-0659-16, BERGEN COUNTY AND STATEWIDE) (A-5345-16T4)

P.H. VS. L.W. (FD-02-0659-16, BERGEN COUNTY AND STATEWIDE) (A-5345-16T4)

In this appeal involving an interstate custody dispute, the court reverses the Family Part's order denying the South Dakota mother's motion to dismiss. Applying the Uniform Child Custody Jurisdiction and Enforcement Act, the court concludes the Family Part initially exercised jurisdiction in 2016 based on a mistaken finding that New Jersey was the children's "home state," as the parties' twin daughters did not reside here for six consecutive months immediately before the father filed suit. Furthermore, the trial court should have determined, by the time it decided defendant's motion to dismiss over a year later, that New Jersey lacked "exclusive, continuing jurisdiction," because both parties and their daughters had long been absent from New Jersey, they lacked a significant connection here, and substantial relevant evidence was no longer available here. In any event, New Jersey had become an inconvenient forum. The court remands the case for a stay of further proceedings in anticipation of dismissal.

MARILYN FLANZMAN VS. JENNY CRAIG, INC., ET AL. (L-6238-17, BERGEN COUNTY AND STATEWIDE) (A-2580-17T1)

MARILYN FLANZMAN VS. JENNY CRAIG, INC., ET AL. (L-6238-17, BERGEN COUNTY AND STATEWIDE) (A-2580-17T1)

This court invalidated an arbitration agreement because the parties did not understand the rights that ostensibly foreclosed plaintiff's right to a jury trial. They could have designated an arbitral institution (like AAA or JAMS) or they could have communicated a general method for selecting a different arbitration setting. Identifying the arbitration process is important because it provides a "meeting of the minds" about what replaced a judicial adjudication. Here, the agreement ignored the subject altogether. This court therefore reversed the order compelling arbitration for lack of mutual assent and remanded to the trial court for further proceedings.

DCPP VS. M.C. AND J.R., IN THE MATTER OF J.C.-R. (FN-15-0211-16, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-5252-16T3)

DCPP VS. M.C. AND J.R., IN THE MATTER OF J.C.-R. (FN-15-0211-16, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-5252-16T3)

This appeal involves the standards and procedures for in camera review and judicial disclosure of a parent's presumptively-confidential juvenile records in child welfare litigation brought by the Division of Child Protection and Permanency ("the Division"), a context not addressed in existing case law.

The Law Guardian objected to the father having unsupervised parenting time with his eighteen-month-old daughter, having learned that he had been adjudicated delinquent as a juvenile several years earlier after for committing sexual offenses upon two minors. The father opposed the court reviewing or disclosing the juvenile records, asserting they are confidential under N.J.S.A. 2A:4A-60.

After hearing oral argument, the Family Part judge reviewed the father's records in camera. The judge then released the records in their entirety to counsel, pursuant to a protective order confining their use to the present Title 30 litigation. The father has appealed the judge's rulings.

The panel affirms the Family Part judge's decision to conduct an in camera review of the records. The panel also upholds the judge's denial of the father's request for the court to conduct an additional hearing after the in camera review was completed. However, because the court's decision to release the records without further hearing was not accompanied by a statement of reasons, as required by case law and Rule 1:7-4, the panel remands this matter for the court to reconsider the matter, make any appropriate modifications, and generate the requisite statement of reasons.

DEUTSCHE BANK TRUST COMPANY AMERICAS, ETC. VS. DEBBIE A. WEINER, ET AL. (F-026288-16, SOMERSET COUNTY AND STATEWIDE) (A-2110-17T4

DEUTSCHE BANK TRUST COMPANY AMERICAS, ETC. VS. DEBBIE A. WEINER, ET AL. (F-026288-16, SOMERSET COUNTY AND STATEWIDE) (A-2110-17T4)

A statute of limitations enacted in 2009 bars residential foreclosure actions commenced after the earliest of three points in time: six years from "the date fixed for the making of the last payment or the maturity date set forth in the mortgage or the note," N.J.S.A. 2A:50-56.1(a), thirty-six years from the recording of the mortgage, N.J.S.A. 2A:50-56.1(b), and twenty years from an uncured default, N.J.S.A. 2A:50-56.1(c). In this appeal, the court rejected a mortgagor's argument that a foreclosure action was time-barred because it was filed seven years after a default and the acceleration of the loan. The court determined that the triggering event in subsection (a)'s six-year provision is the date "set forth in the mortgage or the note," and not the date upon which the mortgagee accelerated the loan, because of subsection (a)'s clear and unambiguous language and because subsection (c) provides a time-frame – twenty years – that begins to run upon an uncured default.

IN THE MATTER OF THE ESTATE OF DOUGLAS CASTELLANO, ETC. (CP-0212-2016, ESSEX COUNTY AND STATEWIDE) (A-0165-17T3)

IN THE MATTER OF THE ESTATE OF DOUGLAS CASTELLANO, ETC. (CP-0212-2016, ESSEX COUNTY AND STATEWIDE) (A-0165-17T3)

N.J.S.A. 9:17-43(a)(1) establishes a presumption that "[a] man is presumed to be the biological father of a child if . . . [h]e and the child's biological mother [were] married to each other and the child [was] born during the marriage." The decedent here died intestate, leaving siblings and a child, who was born when his mother was married to another man. Decedent's siblings claim this presumption, as well as other circumstances, required the court to assume that the mother's husband had "equitably adopted" the child and thereby severed the child's relationship to the decedent. The court affirmed the trial court's grant of summary judgment, holding that N.J.S.A. 9:17-43(a)(1)'s presumption had been rebutted by DNA evidence that conclusively established that the decedent fathered the child, and that the other circumstances were of insufficient weight to cause a break in that natural relationship.

RADIATION DATA, INC. VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET AL. (L-1260-16, SOMERSET COUNTY AND STATEWIDE) (A-0707-17T

RADIATION DATA, INC. VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET AL. (L-1260-16, SOMERSET COUNTY AND STATEWIDE) (A-0707-17T2)

Plaintiff is a certified radon measurement and mitigation business regulated by the Department of Environmental Protection ("DEP") and the largest radon measurement business in the State. While the DEP was pursuing a regulatory enforcement action against the company, the company filed suit against the DEP and several DEP officials in the Law Division, alleging improper conduct and violations of its constitutional, statutory, and common-law rights.

Defendant moved to dismiss the company's constitutional and civil rights claims, asserting their alleged conduct was shielded under principles of qualified immunity. The trial court partially denied the immunity motion and ordered the parties to proceed with discovery.

The panel concludes the trial court misapplied principles of qualified immunity and should have dismissed the corresponding counts of the complaint. The DEP did not violate "clearly established" equal protection and due process rights by pursuing a regulatory enforcement action against the company, and by directing that communications between the company and the agency be channeled through their respective attorneys while the contentious administrative litigation was ongoing. Among other things, the panel notes that a regulatory agency must retain the discretion to interact with private parties in a manner it deems most efficient and effective, so long as it responds to outside inquires within a reasonable time and in a reasonable manner. Discovery on these claims was unnecessary, as defendants have qualified immunity from suit, not just a final judgment. The matter is remanded to adjudicate other open counts of the complaint.

In a separate unpublished opinion issued today, the panel affirmed in part the findings of the DEP Commissioner and the two administrative law judges that the company committed various regulatory violations, and reversed and remanded those findings in part.

DEXTER RAMPERSAUD, ET AL. VS. RONALD A. HOLLINGSWORTH, ET AL. (LT-015717-16, HUDSON COUNTY AND STATEWIDE) (A-2897-16T1)

DEXTER RAMPERSAUD, ET AL. VS. RONALD A. HOLLINGSWORTH, ET AL. (LT-015717-16, HUDSON COUNTY AND STATEWIDE) (A-2897-16T1)

In this appeal, a now-evicted tenant of a residential apartment, which he sublet to another, argued that only the subtenant, whose conduct generated the tenancy action, could be evicted. In affirming a judgment of possession, the court rejected the tenant's strained interpretation of the Anti-Eviction Act, N.J.S.A. 2A:18-61.1(c), and conclude that a wrongful act of one permits the eviction of all occupants.

DCPP VS. P.O. AND M.C.D., IN THE MATTER OF THE GUARDIANSHIP OF M.D.C.-O. AND J.E.C.-O. (FG-15-0017-13, (A-1871-16T2/A

DCPP VS. P.O. AND M.C.D., IN THE MATTER OF THE GUARDIANSHIP OF M.D.C.-O. AND J.E.C.-O. (FG-15-0017-13, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)(CONSOLIDATED) (A-1871-16T2/A-1872-16T2)

Although the court affirmed the termination of parental rights of these parents, who executed an identified surrender and were removed to Peru, their country of origin, the court emphasized the need to put on the record all matters in child protective services litigation resulting in an order, even when the parties present consent to the order. Notice should also be provided to biological parents when the Division of Child Protection and Permanency seeks to vacate an identified surrender and seek termination of parental rights.

PIECH VS. GLENN LAYENDECKER, ET AL. (L-3473-14, MIDDLESEX COUNTY AND STATEWIDE) (A-1417-16T4)

PIECH VS. GLENN LAYENDECKER, ET AL. (L-3473-14, MIDDLESEX COUNTY AND STATEWIDE) (A-1417-16T4)

Plaintiff suffered injuries while a forty-year-old man struck a piñata at a birthday party. The judge charged both Model Jury Charges (Civil), 5.20F(4), "Social Guest – Defined and General Duty Owed" (rev. Dec. 2014) (the Model Charge), and Exception (2) to the Model Charge. That exception states that "[i]n cases where the host is conducting some 'activity' on the premises at the time of [the] guest’s presence, [the host] is under an obligation to exercise reasonable care for the protection of [the] guest." This court held that when a plaintiff sustains an injury resulting solely from an "activity" on the host's property – as opposed to an injury caused by a combination of that activity and a physical dangerous condition on the property – then the judge should only charge Exception (2).

L.E. AND P.T. VS. THE PLAINFIELD PUBLIC SCHOOL DISTRICT, ET AL. VS. A.D. AND R.B. (L-2513-15, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-3638-16T1)

L.E. AND P.T. VS. THE PLAINFIELD PUBLIC SCHOOL DISTRICT, ET AL. VS. A.D. AND R.B. (L-2513-15, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-3638-16T1)

The panel reverses the trial court's summary judgment dismissal of plaintiff L.E.'s complaint that she was sexually assaulted in a high school bathroom during class hours as a result of the negligent supervision of defendant school board and its employees. The court holds that negligent supervision is distinct from a claimed failure to provide police protection services, or to enforce laws, for which the Tort Claims Act provides immunity, under N.J.S.A. 59:5-4, N.J.S.A. 59:3-5, and N.J.S.A. 59:2-4. Therefore, the trial court erred in relying on the Act in dismissing the complaint. Noting that the duty to supervise students during school hours on school property is well-established, the panel concludes that a jury could reasonably find that defendants violated the duty under the facts presented; and, despite the students' independent acts, the negligent supervision was a proximate cause of L.E.'s injuries.

CHARLES WRIGHT VS. BANK OF AMERICA, N.A., ET AL. (L-0433-15, GLOUCESTER COUNTY AND STATEWIDE) (A-2358-15T3)

CHARLES WRIGHT VS. BANK OF AMERICA, N.A., ET AL. (L-0433-15, GLOUCESTER COUNTY AND STATEWIDE) (A-2358-15T3)

Plaintiff filed a complaint that alleged five notices of intention to foreclose served on him by defendant BAC Home Loans Servicing, LP. (BAC) violated the Fair Foreclosure Act. He asserted that BAC – the alleged servicer of loans made in 2007 when plaintiff purchased his residence – neglected to include the name and address of the lender. Although no foreclosure action followed on the heels of these notices, plaintiff claims these FFA violations – not actionable on their own – may form the basis of a claim under the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA). Consequently, he argues that the trial judge erred in dismissing the complaint by applying the litigation privilege and by holding that the alleged FFA violation cannot support a TCCWNA claim. The court rejected the application of the litigation privilege but because the legal grounds upon which the latter determination was based have shifted since the trial judge's decision and the perfection of this appeal, see Spade v. Select Comfort Corp., 232 N.J. 504 (2018), the court vacated the order of dismissal and remanded to allow for an amended pleading expressing the true nature of his damage claim.

SANDRA NICHOLAS, ET AL. VS. HACKENSACK UNIVERSITY MEDICAL CENTER, ET AL. (L-4839-12, MIDDLESEX COUNTY AND STATEWIDE) (A-5165-15T2)

SANDRA NICHOLAS, ET AL. VS. HACKENSACK UNIVERSITY MEDICAL CENTER, ET AL. (L-4839-12, MIDDLESEX COUNTY AND STATEWIDE) (A-5165-15T2)

In this medical malpractice action, plaintiffs claimed the board certified defendant doctors deviated from the standard of care in their specialties of pediatrics and pediatric critical care. The trial court barred the testimony of plaintiffs' expert, finding he did not satisfy the requirements of the New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -42. More particularly, the trial court found that although the expert was board certified in pediatrics and pediatric critical care, he was not qualified to testify under the Act because, at the time of the alleged malpractice, he did not spend a majority of his professional time in either active clinical practice in the specialties, as required by N.J.S.A. 2A:53A-41(a)(2)(a), or instructing students in the specialties as required by N.J.S.A. 2A:53A-41(a)(2)(b).

The court reverses and holds the expert satisfied the Act's qualification requirements. The court determined the evidence established the expert practiced in the same specialties as the defendant doctors, and thereby met the requirements of N.J.S.A. 2A:53A-41(a). The court further concluded that where the alleged malpractice occurred during the practice in a specialty recognized by the American Board of Medical Specialties and a defendant doctor is board certified in the specialty, the plaintiffs' expert must also satisfy either the requirements of N.J.S.A. 2A:53A-41(a)(1) or N.J.S.A. 2A:53A-41(a)(2). The court found the trial court erred by finding the expert was required to satisfy the requirements of either N.J.S.A. 2A:53A-41(a)(2)(a) or (b) where the evidence otherwise established the expert was credentialed at a hospital to treat patients for the condition at the time of the alleged malpractice, and thereby satisfied the requirements of N.J.S.A. 2A:53A-41(a)(1).

MILAGROS ROMAN VS. BERGEN LOGISTICS, LLC, ET AL. (L-2652-17, BERGEN COUNTY AND STATEWIDE) (A-5388-16T3

MILAGROS ROMAN VS. BERGEN LOGISTICS, LLC, ET AL. (L-2652-17, BERGEN COUNTY AND STATEWIDE) (A-5388-16T3)

In this employment case, plaintiff asserted claims for violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and intentional infliction of emotional distress. The trial court granted defendants' motion to dismiss the complaint, finding plaintiff was obligated to litigate her claims in arbitration pursuant to an agreement she executed when she was hired. The agreement also included a punitive damages waiver, which the trial court determined was enforceable.

The court affirmed the order dismissing the complaint, finding the agreement satisfied the requirements established in Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014), and therefore plaintiff was obligated to prosecute her claims in arbitration. The court, however, modified the order, holding the punitive damages waiver is unenforceable because it violates the public policy underlying the LAD. The court further concluded the waiver should be severed from the agreement, and directed that the matter proceed to arbitration with plaintiff able to pursue her punitive damages claim.

JASON DEVER VS. DEBRA HOWELL (FD-05-0386-11, CAPE MAY COUNTY AND STATEWIDE) (A-0468-17T3)

JASON DEVER VS. DEBRA HOWELL (FD-05-0386-11, CAPE MAY COUNTY AND STATEWIDE) (A-0468-17T3)

This case involves the father's attempt to relocate the children to another State over the mother's objection. He relocated anyway without obtaining an order permitting the move. This court held that N.J.S.A. 9:2-2 required him to obtain an order permitting the removal before the actual relocation. On the mother's later motion, the judge ordered the father to return the children. In upholding the judge's refusal to do a best interests analysis on the mother's motion, this court concluded that the time for the judge to determine whether plaintiff had established "cause" for the removal of the children would have been before the relocation occurred, and that the father had the ultimate burden of proof.

PALISADIUM MANAGEMENT CORP. VS. BOROUGH OF CLIFFSIDE PARK CARLTON CORP. VS. BOROUGH OF CLIFFSIDE PARK (TAX COURT OF NEW JERSEY) (A-4370-15T4)

PALISADIUM MANAGEMENT CORP. VS. BOROUGH OF CLIFFSIDE PARK CARLTON CORP. VS. BOROUGH OF CLIFFSIDE PARK (TAX COURT OF NEW JERSEY) (A-4370-15T4)

The panel considered the appeals of owners of two adjacent tax lots on the site of the former Palisades Amusement Park in Cliffside Park from Tax Court judgments affirming the 2011-2013 tax assessments on the properties. The Tax Court found plaintiffs had overcome the presumption of the validity of the assessments; rejected the Borough's cost approach for valuing the property; rejected the reliability of improvement costs generated by computer software; accepted plaintiffs' expert's hybrid approach to valuation but found the appraiser lacked adequate objective evidence to support his adjustments; and determined there was not sufficient competent evidence in the record to permit the court to make an independent finding of true value, resulting in the assessments being affirmed. The panel affirms, substantially for the reasons expressed by Judge Fiamingo in her written opinion, which is reported at 29 N.J. Tax 245 (Tax 2016).

LINDA COWLEY, ET AL. VS. VIRTUA HEALTH SYSTEM, ET AL. (L-3616-16,

LINDA COWLEY, ET AL. VS. VIRTUA HEALTH SYSTEM, ET AL. (L-3616-16, CAMDEN COUNTY AND STATEWIDE) (A-4004-16T4)

In this appeal, plaintiffs challenge the dismissal of their medical malpractice complaint for failure to serve an affidavit of merit. The motion judge rejected plaintiffs' argument that the "common knowledge" exception relieved them of that obligation because the nurses who cared for one of the plaintiffs failed to take any action when a nasogastric (NG) tube that was properly inserted into her, in accordance with a physician's order, became dislodged and allegedly caused her to suffer serious injuries. The motion judge found the fact that the tube was initially inserted in accordance with a physician's order, to be "critical in making this determination" and changed "this matter from a case where a jury with ordinary knowledge and experience could make a determination . . . to a standard of care case that requires expert testimony" because "a jury [could not] make a determination . . . without knowing what . . . a nurse [should] do" when a [NG] tube is inserted pursuant to an order but subsequently comes out.

The panel disagreed and concluded that the nurses' failure to take any action – not even contacting the physician who ordered that the tube be inserted – demonstrated that a health care provider failed to adhere to a doctor's order and therefore satisfied the purposes of the Affidavit of Merit Statute by establishing that plaintiffs' claim had sufficient merit under the common knowledge exception to proceed.

NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS VS. JOSEPH MAIONE (DEPARTMENT OF COMMUNITY AFFAIRS) (A-0712-15T4)

NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS VS. JOSEPH MAIONE (DEPARTMENT OF COMMUNITY AFFAIRS) (A-0712-15T4)

This is an appeal from the final decision of the Department of Community Affairs (DCA) that found appellant ineligible to receive two Superstorm Sandy recovery grants. The DCA awarded these grants to assist homeowners to remain in the county of their primary residence after the storm damaged their primary residence or to help them rebuild or repair their damaged primary residence. The DCA initially awarded appellant two grants totaling $85,000 based on his representation on the grant applications that his primary residence was a property he owned in Toms River.

The DCA thereafter found documentary evidence showing appellant's primary residence at the time of the storm was an apartment located in Hoboken and demanded that appellant refund the awards. The matter was transferred to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ). Appellant argued the DCA should have applied the common law concept of domicile to determine what his primary residence was at the time of storm. The ALJ issued an Initial Decision rejecting appellant's argument. The DCA Commissioner accepted the ALJ's findings and conclusions of law without modification.

This court affirms the Commissioner's decision. These grants were created to assist a class of property owners whose "primary residence" was damaged or destroyed by Superstorm Sandy. The grant applications contain a list of specific documents that the DCA uses to make the eligibility determinations. Replacing the straightforward criteria for eligibility established by the DCA with the common law concept of domicile would compromise the essential purpose of these relief programs and inject needless ambiguity into the eligibility determination process.

JERRY ALLOCO, ET AL. VS. OCEAN BEACH AND BAY CLUB, ET AL. (C-000015-14, OCEAN COUNTY AND STATEWIDE) (A-0922-16T3)

JERRY ALLOCO, ET AL. VS. OCEAN BEACH AND BAY CLUB, ET AL. (C-000015-14, OCEAN COUNTY AND STATEWIDE) (A-0922-16T3)

Plaintiffs challenged rule changes by made by the board of trustee of a common-interest community, claiming they were incompetent and thus not protected by the business judgment rule. Plaintiffs cited a case stating: "Courts will not second-guess the actions of directors unless it appears that they are the result of fraud, dishonesty or incompetence." Papalexiou v. Tower W. Condo., 167 N.J. Super. 516, 527 (Ch. Div. 1979). The Appellate Division disapproves this statement in Papalexiou, and reiterates that the business judgment rule protects an authorized action by a board from judicial scrutiny unless the plaintiff shows that the challenged "action is fraudulent, self-dealing or unconscionable." E.g., Seidman v. Clifton Sav. Bank, 205 N.J. 150, 175 (2011). Plaintiffs failed to carry that initial burden.

I'ASIA MORELAND, ET AL. VS. WILLIAM PARKS, ET AL. (L-0227-11, MERCER COUNTY AND STATEWIDE) (A-4754-16T4)

I'ASIA MORELAND, ET AL. VS. WILLIAM PARKS, ET AL. (L-0227-11, MERCER COUNTY AND STATEWIDE) (A-4754-16T4)

Plaintiffs Valerie Benning and I'Asia Moreland were a same-sex couple who lived together with Moreland's two biological children, a boy who was nearly five years old and his two-year-old sister. On January 30, 2009, Benning was standing on the sidewalk holding the hand of the two-year-old girl, when a fire truck collided with a pickup truck, causing the pickup truck to strike and kill the child. Plaintiffs filed a civil action against the tortfeasors that included a claim by Benning for negligent infliction of emotional distress under Portee v. Jaffee, 84 N.J. 88 (1980).

The Law Division granted defendants' motion for summary judgment and dismissed Benning's Portee claim, finding she did not present sufficient evidence that she had an "intimate, familial relationship" with the two-year-old. This court denied Benning's motion for leave to appeal. The Supreme Court granted Benning's motion for leave to appeal and summarily remanded this matter for this court to decide this issue.

As ordered by the Supreme Court, this court's analysis is exclusively focused on the second element of the four elements of proof required to bring a negligent infliction of emotional distress claim, as clarified and expanded in Dunphy v. Gregor, 136 N.J. 99 (1994). Viewing the evidence under the standard codified in Rule 4:46-2(c), this court holds that Benning presented sufficient evidence from which a jury could find that she and the two-year-old decedent had an intimate familial relationship at the time of the child's tragic death. This court reverses the Law Division's order dismissing Benning's claim as a matter of law and remands the matter for trial by jury.

Josh Willner v. Vertical Reality, Inc. (079626) (Monmouth County and Statewide) (A-9-17;

Josh Willner v. Vertical Reality, Inc. (079626) (Monmouth County and Statewide) (A-9-17; 079626)

The Court affirms the panel’s approval of the judge’s jury instruction, albeit under a different standard of review, finding that the judge’s actions were harmless error. The Court reverses the imposition of sanctions. It would be unfair to impose sanctions in a case where the only means for a party to avoid sanctions would be to pay an amount greater than the jury’s verdict against that party, without advance notice of that consequence.

I'ASIA MORELAND, ET AL. VS. WILLIAM PARKS, ET AL. (L-0227-11, MERCER COUNTY AND STATEWIDE) (A-4754-16T4)

I'ASIA MORELAND, ET AL. VS. WILLIAM PARKS, ET AL. (L-0227-11, MERCER COUNTY AND STATEWIDE) (A-4754-16T4)

Plaintiffs Valerie Benning and I'Asia Moreland were a same-sex couple who lived together with Moreland's two biological children, a boy who was nearly five years old and his two-year-old sister. On January 30, 2009, Benning was standing on the sidewalk holding the hand of the two-year-old girl, when a fire truck collided with a pickup truck, causing the pickup truck to strike and kill the child. Plaintiffs filed a civil action against the tortfeasors that included a claim by Benning for negligent infliction of emotional distress under Portee v. Jaffee, 84 N.J. 88 (1980).

The Law Division granted defendants' motion for summary judgment and dismissed Benning's Portee claim, finding she did not present sufficient evidence that she had an "intimate, familial relationship" with the two-year-old. This court denied Benning's motion for leave to appeal. The Supreme Court granted Benning's motion for leave to appeal and summarily remanded this matter for this court to decide this issue.

As ordered by the Supreme Court, this court's analysis is exclusively focused on the second element of the four elements of proof required to bring a negligent infliction of emotional distress claim, as clarified and expanded in Dunphy v. Gregor, 136 N.J. 99 (1994). Viewing the evidence under the standard codified in Rule 4:46-2(c), this court holds that Benning presented sufficient evidence from which a jury could find that she and the two-year-old decedent had an intimate familial relationship at the time of the child's tragic death. This court reverses the Law Division's order dismissing Benning's claim as a matter of law and remands the matter for trial by jury.

WANDA BROACH-BUTTS, ET AL. VS. THERAPEUTIC ALTERNATIVES, INC., ET AL. (L-2746-13, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0755-

WANDA BROACH-BUTTS, ET AL. VS. THERAPEUTIC ALTERNATIVES, INC., ET AL. (L-2746-13, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0755-16T2)

Plaintiff and her late husband's estate allege that defendant, a Division of Child Protection and Permanency contractor, negligently placed a dangerous child in the therapeutic foster home that plaintiff and her husband operated, and failed to warn them of the child's history of dangerous behavior. During the fifteen months following his removal from the home for misbehavior, the child illegally returned three times, ultimately killing the husband during a burglary. Reversing summary judgment to defendant, the panel holds that defendant owed a duty to the foster parents to exercise reasonable care in placing the child in their home, and to reasonably disclose the child's background to enable them to make an informed decision whether to accept him. Whether defendant breached that duty, and particularly whether that breach proximately caused the harm that followed, are jury questions on the record presented when viewed in a light most favorable to plaintiffs.

Judge Sabatino filed a concurring opinion, suggesting the State might utilize stringent regulations, contractual provisions requiring notification, or other measures and policies to avoid future repetition of the fatal tragedy that occurred in this case.

Agriculture Development Committee v. Quaker Valley Farms, LLC (078517) (Hunterdon County and Statewide) (A-43/44/45/46-1

Agriculture Development Committee v. Quaker Valley Farms, LLC (078517) (Hunterdon County and Statewide) (A-43/44/45/46-16; 078517)

Quaker Valley had the right to erect hoop houses, but did not have the authority to permanently damage a wide swath of premier quality soil in doing so. Quaker Valley clearly violated the deed and the ARDA. Accordingly, the judgment of the Appellate Division, which overturned the trial court’s grant of summary judgment in favor of the SADC, is reversed. Those who own deed-restricted farmland must have well delineated guidelines that will permit them to make informed decisions about the permissible limits of their activities. It is only the extreme nature of this case that saves the present enforcement action.

MEPT JOURNAL SQUARE URBAN RENEWAL, LLC, ET AL. VS. THE CITY OF JERSEY CITY (L-3177-15, HUDSON COUNTY AND STATEWIDE) (A-2281-16T4)

MEPT JOURNAL SQUARE URBAN RENEWAL, LLC, ET AL. VS. THE CITY OF JERSEY CITY (L-3177-15, HUDSON COUNTY AND STATEWIDE) (A-2281-16T4)

In this appeal, this court determines that a municipality may not condition the grant of tax abatements pursuant to the Long Term Tax Exemption Law (LTTEL), N.J.S.A. 40A:20-1 to -22, upon the redevelopers paying two million dollars through Prepayment Agreements. These payments were characterized as "a portion" of the Annual Service Charge the redeveloper would pay in lieu of property taxes after the project was completed. This court thus affirms the part of the judgment entered by the Law Division that declared the Prepayment Agreements ultra vires and ordered the municipality to refund the two million dollars to the redeveloper.

This court also determines that pursuant to the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -73, a municipality may require the redeveloper to contribute to an Affordable Housing Trust Fund (AHTF) established by the municipality as a condition for granting a tax abatement under the LTTEL. N.J.S.A. 40A:12A-4.1. This court thus reverses the decision of the Law Division that ordered the City to return to the redeveloper a combined $710,769 initial contribution it made to the municipal AHTF, as a condition for the municipality granting the tax abatement under the LTTEL.

ARTHUR G. WHELAN VS. ARMSTRONG INTERNATIONAL INC., ET AL. (L-7161-12, MIDDLESEX COUNTY AND STATEWIDE) (A-3520-13T4)

ARTHUR G. WHELAN VS. ARMSTRONG INTERNATIONAL INC., ET AL. (L-7161-12, MIDDLESEX COUNTY AND STATEWIDE) (A-3520-13T4)

In this products liability case arising out of exposure to asbestos, we consider anew whether a manufacturer has a duty to warn about the risk of harm from exposure to asbestos-containing replacement parts integral to the function of the manufacturer's product, even if the manufacturer did not fabricate or distribute the replacement parts. We conclude that a duty to warn exists when the manufacturer's product contains asbestos components, which are integral to the function of the product, and the manufacturer is aware that routine periodic maintenance of its product will require the replacement of those components with other asbestos-containing parts.

In light of our determination that a manufacturer's product includes any replacement parts necessary to its function, defendants' duty to warn extends to any danger created by those replacement parts. A careful review of the record reveals plaintiff presented sufficient evidence detailing his exposure to asbestos, either from original parts supplied by defendants or replacement parts required for the function of defendants' products, to create issues of fact as to all defendants. The panel, therefore, reverses the orders granting summary judgment in favor of defendants and remands for trial.

S.T. VS. 1515 BROAD STREET, LLC, ET AL. VS. VIRGINIA GLASS PRODUCTS, ET AL. (L-1651-10, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED) (A-5525-13T2)

S.T. VS. 1515 BROAD STREET, LLC, ET AL. VS. VIRGINIA GLASS PRODUCTS, ET AL. (L-1651-10, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED) (A-5525-13T2)

Plaintiff's counsel informed the trial court of counsel's reasonable belief that plaintiff had diminished capacity. Under Rule 4:26-2(a)(4), a court may appoint a guardian ad litem if there is good cause to believe that a party lacks the mental capacity needed to participate in the litigation. Based upon the guardian ad litem's investigation or other information, the court may give the guardian ad litem the power to make specific decision(s) needed in the case if it finds clear and convincing evidence that the party is mentally incapable of making those decision(s). The Appellate Division disapproves older cases suggesting the court had to meet Rule 4:86's standard for appointing a guardian of the person or property. As the court found plaintiff lacked the mental capacity to decide whether to try or settle the case, the guardian ad litem could negotiate a settlement which the court properly found was fair and reasonable under Rule 4:44.

PERSONAL SERVICE INSURANCE COMPANY VS. RELIEVUS A/S/O RACHEL SACKIE (L-3544-16, CAMDEN COUNTY AND STATEWIDE) (A-2393-16T2)

PERSONAL SERVICE INSURANCE COMPANY VS. RELIEVUS A/S/O RACHEL SACKIE (L-3544-16, CAMDEN COUNTY AND STATEWIDE) (A-2393-16T2)

The question presented is whether a Law Division summary action seeking to vacate an award by a dispute resolution professional (DRP) as well as an appeal award of a three-member DRP panel, which affirmed the DRP's decision, was timely made within the forty-five-day time frame under N.J.S.A. 2A:23A-13(a), when it was filed 159 days after the DRP's award, but forty-three days after the DRP panel's award. The trial court dismissed the summary action as untimely; finding it was not filed within forty-five days after the DRP's award. We reverse and remand because we conclude that, under the governing statutory and regulatory guidelines, the summary action was timely filed within forty-five days of the DRP panel's decision.

Communications Workers of America, AFL-CIO v. Civil Service Commission (078742) (Statewide) (A-47-16

Communications Workers of America, AFL-CIO v. Civil Service Commission (078742) (Statewide) (A-47-16; 078742)

A court may reverse the Legislature’s invalidation of an agency rule or regulation pursuant to the Legislative Review Clause if (1) the Legislature has not complied with the procedural requirements of the Clause; (2) the Legislature has incorrectly asserted that the challenged rule or regulation is inconsistent with “the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement,” N.J. Const. art. V, § 4, ¶ 6; or (3) the Legislature’s action violates a protection afforded by any other provision of the New Jersey Constitution, or a provision of the United States Constitution. To determine legislative intent, the court should rely exclusively on statutory language. It should not apply a presumption in favor of either the Legislature’s findings or the agency’s exercise of its rulemaking authority. Here, the Court finds no procedural defect or constitutional infirmity in the Legislature’s actions. The Legislature correctly determined that N.J.A.C. 4A:3-3.2A conflicts with two provisions of the Civil Service Act.

RSI Bank v. The Providence Mutual Fire Insurance Company (079116) (Union County and Statewide) (A-68-16;

RSI Bank v. The Providence Mutual Fire Insurance Company (079116) (Union County and Statewide) (A-68-16; 079116)

A PTI court may include a restitution condition in a PTI agreement only if it can quantify the financial obligation and assess the participant’s current and prospective ability to meet that obligation. An open-ended agreement to indemnify the victim of the participant’s alleged offense for unspecified future losses is not an appropriate condition of PTI. Moreover, a restitution condition of PTI is inadmissible as evidence in a subsequent civil proceeding against the PTI participant. The indemnification provision of the PTI agreement at issue should have played no role in this civil litigation.

Montclair State University v. County of Passaic and City of Clifton (080084) (Passaic County and Statewide) (A-16-17

Montclair State University v. County of Passaic and City of Clifton (080084) (Passaic County and Statewide) (A-16-17; 080084)

First, under the qualified immunity addressed in Rutgers a state agency must be able to demonstrate both that the planned action is reasonable and that the agency reasonably consulted with local authorities and took into consideration legitimate local concerns. Second, although an otherwise immune state entity may not be compelled to submit to review before a planning board, when its improvement directly affects off-site property and implicates a safety concern raised by a local governmental entity responsible to protect public safety with respect to that off-site property, special judicial review and action is required. In circumstances such as are presented here, a judicial finding that the cited public safety concern has been reasonably addressed shall be a necessary additional requirement before a court may either compel local regulatory action or grant declaratory relief that the planned action is exempt from land use regulation. The Court does not specify what record warrants such a finding in every case. Rather, the trial court should determine, on a case-by-case basis, whether it could make such a finding via a summary proceeding or whether a more fulsome proceeding is necessary.

Cherokee LCP Land, LLC v. City of Linden Planning Board (079146) (Union County and Statewide) (A-82-16; 079146)

Cherokee LCP Land, LLC v. City of Linden Planning Board (079146) (Union County and Statewide) (A-82-16; 079146)

Pursuant to N.J.S.A. 40:55D-4, a tax lienholder who can show that its “right to use, acquire or enjoy property is or may be affected” if the application is granted is an interested party and therefore may have standing to challenge a planning board’s approval of a land use application.

In re: Accutane Litigation (079958) (Atlantic County and State

In re: Accutane Litigation (079958) (Atlantic County and Statewide) (A-25-17; 079958)

There is little distinction between Daubert’s principles regarding expert testimony and New Jersey’s, and Daubert’s factors for assessing the reliability of expert testimony will aid New Jersey trial courts in their role as the gatekeeper of scientific expert testimony in civil cases. Accordingly, the Court now reconciles the standard under N.J.R.E. 702, and relatedly N.J.R.E. 703, with the federal Daubert standard to incorporate its factors for civil cases. Analysis of the record in this case leads to a clear result: the trial court properly excluded plaintiffs’ experts’ testimony. Moreover, the Court reaffirms that the abuse of discretion standard must be applied by an appellate court assessing whether a trial court has properly admitted or excluded expert scientific testimony in a civil case. In this matter, the trial court did not abuse its discretion in its evidential ruling and, therefore, the Appellate Division erred in reversing the trial court’s exclusion of the testimony of plaintiffs’ experts

Janell Brugaletta v. Calixto Garcia, D.O. (079056)

Janell Brugaletta v. Calixto Garcia, D.O. (079056) (Passaic County and Statewide) (A-66-16; 079056)

The Court affirms the panel’s order shielding the redacted document from discovery because the PSA’s self-critical-analysis privilege prevents its disclosure. The Court also affirms the panel’s determination that, when reviewing a discovery dispute such as this, a trial court should not be determining whether a reportable event under the PSA has occurred. The Court reverses the judgment to the extent it ends defendants’ discovery obligation with respect to this dispute, finding that defendants have an unmet discovery duty under Rule 4:17-4(d) that must be addressed. Accordingly, the Court provides direction on how the court should have addressed, through New Jersey’s current discovery rules, the proper balancing of interests between the requesting party and the responding party here, and remands to the trial court.

THERESA WEAR, ET AL. VS. SELECTIVE INSURANCE COMPANY WOODBURY MEDICAL CENTER ASSOCIATES, LLP VS. SELECTIVE INSURANCE COMPANY (L-1583-13, GLOUCESTER COUNTY AND STATEWIDE)(CONSOLIDATED) (A-5526-15T1

THERESA WEAR, ET AL. VS. SELECTIVE INSURANCE COMPANY WOODBURY MEDICAL CENTER ASSOCIATES, LLP VS. SELECTIVE INSURANCE COMPANY (L-1583-13, GLOUCESTER COUNTY AND STATEWIDE)(CONSOLIDATED) (A-5526-15T1/A-0033-16T1)

In this appeal, the court held that it was premature to mandate the insurance carrier to provide a defense to an insured on an environmental claim where the unambiguous exclusion contained anti-concurrent and anti-sequential language. The proper remedy at that stage in the proceedings, given the uncertainty of coverage, was to convert the duty to defend to a duty to reimburse as in Grand Cove II. The court further held that it was premature to apply the Griggs analysis to a settlement reached between the insured and the claimants prior to a determination that the insurance carrier breached its duty to defend.

REGINAL LITTLE VS. KIA MOTORS AMERICA, INC. (L-0800-01, UNION COUNTY AND STATEWIDE) (A-0794-15T3)

REGINAL LITTLE VS. KIA MOTORS AMERICA, INC. (L-0800-01, UNION COUNTY AND STATEWIDE) (A-0794-15T3)

In this class action against defendant Kia Motors America, Inc., (KMA) plaintiff class of 8455 Kia Sephia owners and lessees represented by Regina Little proved at a jury trial that the Sephia, model years 1997 through 2000, had a defective front brake system, which caused premature brake pad and rotor wear. Concluding that the defect amounted to a breach of express and implied warranties, and that all owners had suffered damage due to the defect, the jury awarded each member of the class $750 ($6.3 million total) in repair damages.

Determining for the first time post-trial that repair damages could not be awarded on a class-wide basis because they were dependent upon individual factors, the trial court granted KMA's motion for judgment notwithstanding the verdict on the repair damages award, decertified the class for purposes of damages, and ordered a new trial on repair damages only, to proceed by way of claim forms. With the advantage of recent case law unavailable to the trial judge, the court now reverses, reinstates the jury award and remands for determination of counsel fees.

IN THE MATTER OF BELLEVILLE EDUCATION ASSOCIATION AND BELLEVILLE BOARD OF EDUCATION BELLEVILLE EDUCATION ASSOCIATION VS. BELLEVILLE BOARD OF EDUCATION (PUBLIC EMPLOYMENT RELATIONS COMMISSION, AND L-7237-15, ESSEX COUNTY AND STATEWIDE)(CONSOLIDATED) (A-5104-14T

IN THE MATTER OF BELLEVILLE EDUCATION ASSOCIATION AND BELLEVILLE BOARD OF EDUCATION BELLEVILLE EDUCATION ASSOCIATION VS. BELLEVILLE BOARD OF EDUCATION (PUBLIC EMPLOYMENT RELATIONS COMMISSION, AND L-7237-15, ESSEX COUNTY AND STATEWIDE)(CONSOLIDATED) (A-5104-14T3/A-2956-15T3)

This opinion involves two separate, but interrelated cases arising from the same core of operative facts. In the appeal filed by the local board of education under Docket Number A-5104-14, this court upholds the decision of the Public Employment Relations Commission (PERC) to assert its exclusive jurisdiction to decide complaints arising under the New Jersey Employer-Employee Relations Act (EERA), N.J.S.A. 34:13A-1 to -43, even when raised in the context of tenure charges. Applying the Supreme Court's holding in In re Local 195, IFPTE, 88 N.J. 393 (1982), this court also upholds the union's right to engage in good faith negotiations to ascertain the impact the installation of exposed cameras with both audio and video capabilities would have on the terms and conditions of employment for the employees.

In the separate, but related appeal filed by the union under Docket Number A-2956-15, this court holds the Law Division does not have jurisdiction under Rule4:67-6 to enforce an order entered by PERC. Adhering to the Supreme Court's holding in Galloway Twp. Bd. of Educ. v. Galloway Twp. Educ. Ass'n, 78 N.J. 25 (1978), this court holds that only PERC may file a motion before the Appellate Division to enforce its own order under the EERA. A prevailing party in a PERC proceeding only has the right to request that PERC enforce its own order.

Lucia Serico v. Robert M. Rothberg, M.D. (079041) (Essex County and Statewide)(A-69-16

Lucia Serico v. Robert M. Rothberg, M.D. (079041) (Essex County and Statewide)(A-69-16; 079041)

The high-low agreement is a settlement subject to the rules of contract interpretation. Based on the expressed intent of the parties and the context of the agreement, the agreement set $1,000,000 as the maximum recovery. Therefore, Serico may not seek additional litigation expenses allowed by Rule 4:58. The judgment of the Appellate Division is accordingly affirmed.

Allstars Auto Group, Inc. v. New Jersey Motor Vehicle Commission (078991) (Statewide) (A-72/73/74/75/76/77/78/79-16; 078991)

Allstars Auto Group, Inc. v. New Jersey Motor Vehicle Commission (078991) (Statewide) (A-72/73/74/75/76/77/78/79-16; 078991)

If the reasons given by the dealers present a colorable dispute of facts or at least the presence of mitigating evidence, the Commission is required to provide an in-person hearing pursuant to N.J.S.A. 39:10-20. An in-person hearing must be held prior to a license suspension or revocation when the target of the enforcement action requests it. Accordingly, the Court reverses the judgment of the Appellate Division and remands.

Maureen McDaid v. Aztec West Condominium Association (079325) (Bergen County and Statewide) (A-88-16; 079325)

Maureen McDaid v. Aztec West Condominium Association (079325) (Bergen County and Statewide) (A-88-16; 079325)

The dictates of Jerista apply to the facts presented here. The res ipsa inference of negligence is applicable because common experience instructs that elevator doors -- however complex their operation may be -- ordinarily should not strike a person entering or exiting an elevator in the absence of negligence. To warrant the inference, plaintiff had no obligation to exclude other possible causes that might explain the malfunctioning of the elevator doors or to show that defendants were on notice of some defect in the doors’ operation.

EGG HARBOR CARE CENTER VS. PATRICIA SCHERALDI, ET AL. (L-0166-16, ATLANTIC COUNTY AND STATEWIDE) (A-2956-16T4)

EGG HARBOR CARE CENTER VS. PATRICIA SCHERALDI, ET AL. (L-0166-16, ATLANTIC COUNTY AND STATEWIDE) (A-2956-16T4)

After plaintiff Egg Harbor, a New Jersey nursing facility, commenced a collection action against various parties, the Californian defendant, Corey Pagano, moved to dismiss the case based upon a lack of personal jurisdiction. Defendant Pagano had not lived in New Jersey in over three decades and had not set foot in our state in seventeen years. Pagano's only connection to the forum stems from his mother, New Jersey and Egg Harbor resident Patricia Scheraldi, as he served as the payee for her incurred obligations, contacted plaintiff Egg Harbor surrounding her health care, and attempted to obtain her Medicaid coverage. In accordance with the purposeful availment requirement necessary to support minimum contacts, we conclude that it is inappropriate for a nonresident defendant to be subjected to personal jurisdiction based upon contacts with the forum state that cannot be reasonably prevented by the defendant. Based upon Pagano's contacts with New Jersey, it violates the longstanding principles of minimum contacts and reasonableness outlined in Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) to hale him into our courts to defend this action. We affirm and remand with directions to amend the order to dismiss the case without prejudice.

JOY DESANCTIS, ET AL. VS. BOROUGH OF BELMAR, ET AL. (L-3550-15, MONMOUTH COUNTY AND STATEWIDE) (A-1074-16T3)

JOY DESANCTIS, ET AL. VS. BOROUGH OF BELMAR, ET AL. (L-3550-15, MONMOUTH COUNTY AND STATEWIDE) (A-1074-16T3)

The mayor and council of the Borough of Belmar, in response to a protest petition seeking a referendum on an ordinance appropriating funds and authorizing the issuance of bonds and notes to construct a beach pavilion, passed a resolution to place the referendum on the ballot.

The court held a later-submitted permissive – not mandatory – interpretive statement of the ordinance was invalid because: 1) neither the borough administrator nor the borough attorney had authority to author and submit the interpretive statement to the county clerk without formal public approval of the mayor and counsel, and 2) the interpretive statement was misleading and contained extraneous language. The court also determined the interpretive statement's phraseology deprived plaintiffs of their substantive right of referendum protected by the New Jersey Civil Rights Act.

The court also upheld the trial judge's award of counsel fees and costs despite the absence of a retainer agreement between plaintiffs and counsel; and the judge's refusal to allocate fees and costs to beachgoers – not Belmar voters – as beneficiaries of plaintiffs' efforts.

MTK FOOD SERVICES, INC. D/B/A THE PALACE RESTAURANT VS. SIRIUS AMERICA INSURANCE COMPANY, ET AL. (L-1227-12, MONMOUTH COUNTY AND STATEWIDE) (A-1309-17T2)

MTK FOOD SERVICES, INC. D/B/A THE PALACE RESTAURANT VS. SIRIUS AMERICA INSURANCE COMPANY, ET AL. (L-1227-12, MONMOUTH COUNTY AND STATEWIDE) (A-1309-17T2)

The panel addresses whether New Jersey's six-year statute of limitations or Pennsylvania's two-year statute of limitations applies to a legal malpractice claim against a lawyer, who is licensed in both states and works in New Jersey, and his law firm, which has offices in both states. The legal services in question concerned a Pennsylvania lawsuit relating to a fire loss at a Pennsylvania restaurant. Applying the substantial-interest test for resolving statute-of-limitations conflicts, which our Supreme Court adopted in McCarrell v. Hoffman-La Roche, Inc., 227 N.J. 569, 574 (2017), we reverse the trial court's decision, which applied New Jersey law.

MTK FOOD SERVICES, INC. D/B/A THE PALACE RESTAURANT VS. SIRIUS AMERICA INSURANCE COMPANY, ET AL. (L-1227-12, MONMOUTH COUNTY AND STATEWIDE) (A-1309-17T2)

MTK FOOD SERVICES, INC. D/B/A THE PALACE RESTAURANT VS. SIRIUS AMERICA INSURANCE COMPANY, ET AL. (L-1227-12, MONMOUTH COUNTY AND STATEWIDE) (A-1309-17T2)

The panel addresses whether New Jersey's six-year statute of limitations or Pennsylvania's two-year statute of limitations applies to a legal malpractice claim against a lawyer, who is licensed in both states and works in New Jersey, and his law firm, which has offices in both states. The legal services in question concerned a Pennsylvania lawsuit relating to a fire loss at a Pennsylvania restaurant. Applying the substantial-interest test for resolving statute-of-limitations conflicts, which our Supreme Court adopted in McCarrell v. Hoffman-La Roche, Inc., 227 N.J. 569, 574 (2017), we reverse the trial court's decision, which applied New Jersey law.