BRUNSWICK BANK & TRUST VS. HELN MANAGEMENT LLC, ET AL. A-1345-15T3

BRUNSWICK BANK & TRUST VS. HELN MANAGEMENT LLC, ET AL.
          A-1345-15T3

In these consolidated foreclosure actions, the trial judge conducted – as required by our earlier decision, Brunswick Bank & Tr. v. Affiliated Bldg. Corp., 440 N.J. Super. 118 (App. Div. 2015) – an evidentiary hearing to determine whether plaintiff, during its serial collection efforts, had recouped more than it was owed. The trial judge concluded that defendants failed to provide "competent" evidence on the fair market value of properties plaintiff obtained at sheriff sales at or about the time plaintiff neared a 100% recoupment of the money due on the combined loans. In remanding again, the court held, among other things, that the judge erred in concluding defendants' evidence was incompetent, that there was admissible evidence suggesting a fair market value in excess of the amount still owed to plaintiff, and that the trial court is authorized, in the absence of the parties' production of expert testimony, to retain its own expert to opine on these relevant subjects to ensure plaintiff does not receive an undue windfall. 

Hazel Hamrick Lee v. Florence Brown, et al. (A-7/8-16; 078043)

Hazel Hamrick Lee v. Florence Brown, et al.
          (A-7/8-16; 078043)

          Because the critical causative conduct in this case was
          a failure to enforce the law, Bierals is entitled to
          absolute immunity.  The City’s liability is conditioned
          on that of Bierals, and thus the City is entitled to
          absolute immunity as well.

BERYL ZIMMERMAN, ET AL. VS. SUSSEX COUNTY EDUCATIONAL SERVICES COMMISSION, SUSSEX COUNTY A-1003-16T4

BERYL ZIMMERMAN, ET AL. VS. SUSSEX COUNTY EDUCATIONAL 

SERVICES COMMISSION, SUSSEX COUNTY 

A-1003-16T4 

In this appeal from a final agency decision by the Commissioner of Education, the court addresses the rights that part-time tenured teachers in the non-public school setting enjoy pursuant to the New Jersey Tenure Act, N.J.S.A. 18A:28-1 to -18. The court held that the omission of a contractual guaranteed number of minimum hours per year did not deprive them from the protection against a reduction in compensation or of their seniority rights. Because the record was incomplete, the court remanded with instructions to determine whether the reduction in hours constituted a reduction in their compensation and a reduction in force under the Tenure Act. 

K.K. VS. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, ET AL. A-5447-15T3

K.K. VS. DIVISION OF MEDICAL ASSISTANCE AND HEALTH 

SERVICES, ET AL. 

A-5447-15T3 

K.K., an eighty-eight-year old legal permanent resident who entered the country in 1991, left in 2007 and returned in 2014, is entitled to Medicaid payments without waiting five years because he entered the country before August 22, 1996. The agency's ruling to the contrary is reversed based on a de novo interpretation of federal statutory requirements. 

TASHICKA HAYES VS. TURNERSVILLE CHRYSLER JEEP A-2063-16T1

 TASHICKA HAYES VS. TURNERSVILLE CHRYSLER JEEP 

A-2063-16T1 

Defendant filed a motion for reconsideration 101 calendar days after the trial court's order denying its motion to enforce an arbitration agreement. Although facially untimely, the motion judge denied the motion on its merit. Defendant appealed. This court affirms for reasons other than those expressed by the trial court. This court holds that a decision to deny a motion to enforce an arbitration agreement is a final order subject to the 20-day time restraints for filing a motion for reconsideration under Rule 4:49-2. Neither the parties nor the trial court may enlarge the time specified by Rule 4:49-2. See R. 1:3-4(c). The trial court's order denying defendant's motion to compel arbitration was appealable as of right. R. 2:2-3(a)(3). Defendant's only legally cognizable recourse after the time to file a motion for reconsideration expired was to file a timely 

direct appeal to this court. GMAC v. Pitella, 205 N.J. 572, 586-87 (2011). 

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION VS. EXXON MOBIL CORPORATION A-0668-15T1/A-0810-15T1

 NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION VS. 

EXXON MOBIL CORPORATION 

A-0668-15T1/A-0810-15T1(CONSOLIDATED) 

Following a sixty-six day bench trial, and before the judge ruled on the admissibility of the experts' testimony and rendered a verdict, the Department of Environmental Protection (DEP) and Exxon Mobil Corporation settled DEP's lawsuit seeking natural resource damages (NRD) caused by pollution at Exxon's refinery in Linden and facility in Bayonne. DEP provided public notice of the proposed consent order pursuant to N.J.S.A. 58:10-23.11e2, and received 16,000 comments, mostly objections, including those of appellant State Senator Raymond Lesniak and appellants, a number of public interest environmental groups. 

Before DEP responded to the comments, both appellants sought to intervene in the trial court; Judge Michael J. Hogan denied their motions without prejudice, and he permitted them to file opposition as amici and argue against the proposed settlement at a subsequent hearing. After Judge Hogan approved the settlement, appellants again sought to intervene for purposes of appeal. Judge Hogan denied their motions. 

The court holds that a party must have standing before it can intervene at trial under our Court Rules. Because appellants cannot bring suit for NRD under the Spill Compensation and Control Act (the Spill Act), N.J.S.A. 58:10-23.11 to 23.24, the Environmental Rights Act, N.J.S.A. 2A:35A-1 to -14, or the common law, the court affirmed Judge Hogan's denial of their motions for intervention at trial. 

However, because the Appellate Division alone can decide whether an appellant has standing to appeal, and because the environmental groups have standing to assert the public's interest in challenging DEP's decision to settle the lawsuit, the court considered the merits of Judge Hogan's decision to approve the settlement. 

Applying the rationale of federal decisions interpreting the Spill Act's federal counterpart, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-675, the court concluded the appropriate standard of review is whether the judge mistakenly exercised his discretion in concluding the settlement was fair, reasonable, consistent with 

the Spill Act's goals, and in the public interest. The court affirmed Judge Hogan's approval of the settlement. 

ROBERT J. CURRAN VS. DEBRA CURRAN A-3968-15T2

ROBERT J. CURRAN VS. DEBRA CURRAN 

A-3968-15T2 

The parties in this matrimonial action agreed to submit issues incident to their divorce to binding economic arbitration pursuant to the New Jersey Arbitration Act (Act), N.J.S.A. 2A:23B-1 to -32. A handwritten provision inserted into the arbitration agreement read: "The parties reserve their rights to appeal the arbitrator's award to the appellate division as if the matter was determined by the trial court." 

Appellant does not contend that he has satisfied any of the grounds enumerated under Section 23 of the Act to vacate the award. He argues instead, that the provision is illegal and therefore, it renders the arbitration award void in its entirety. 

The court confirms that the parties cannot create subject matter jurisdiction by agreement and bypass the trial court to seek immediate appellate review. 

The court concludes that striking the illegal clause does not defeat the primary purpose of the contract, which was to resolve the parties' matrimonial issues through binding arbitration 

pursuant to the Act. The remainder of the arbitration agreement is valid and enforceable and we confirm the arbitration award. 

ANTHONY Y. KITE VS. DIRECTOR, DIVISION OF TAXATION A-3349-15T3

ANTHONY Y. KITE VS. DIRECTOR, DIVISION OF TAXATION 

A-3349-15T3 

Money recovered from a qui tam action brought pursuant to a provision of the federal False Claims Act, 31 U.S.C. § 3730, is a "prize or award" under N.J.S.A. 54A:5-1(l) that is subject to taxation under the New Jersey Gross Income Tax Act, N.J.S.A. 54A:1-1 to 10-12; and the taxpayer may not deduct the fees he paid to his attorneys to prosecute the action, or the amounts he paid to the plaintiffs in related qui tam actions pursuant to their joint prosecution and sharing agreement. 

SHARON BEN-HAIM VS. DANIEL EDRI, ET AL A-2247-15T4

SHARON BEN-HAIM VS. DANIEL EDRI, ET AL 

A-2247-15T4 

We hold that New Jersey courts do not have jurisdiction to hear civil claims against foreign officials when the United States, through the State Department, has issued a suggestion of immunity (SOI) determining that those officials are entitled to conduct-based immunity. Therefore, we affirm a December 9, 2016 order dismissing plaintiff's civil complaint against six Israeli rabbinical judges and an official of the Rabbinical Religious Courts Administration of Israel after the State Department determined that the judges and official were acting within the scope of their duties for a foreign sovereign nation. 

SHARON BEN-HAIM VS. DANIEL EDRI, ET AL A-2247-15T4

SHARON BEN-HAIM VS. DANIEL EDRI, ET AL
          A-2247-15T4

We hold that New Jersey courts do not have jurisdiction to hear civil claims against foreign officials when the United States, through the State Department, has issued a suggestion of immunity (SOI) determining that those officials are entitled to conduct- based immunity. Therefore, we affirm a December 9, 2016 order dismissing plaintiff's civil complaint against six Israeli rabbinical judges and an official of the Rabbinical Religious Courts Administration of Israel after the State Department determined that the judges and official were acting within the scope of their duties for a foreign sovereign nation. 

INREMIDDLESEXREGIONALEDUCATIONALSERVICESCOMMISSION NAME CHANGE REQUEST A-3359-15T4

INREMIDDLESEXREGIONALEDUCATIONALSERVICESCOMMISSION NAME CHANGE REQUEST
A-3359-15T4
The court, after determining the New Jersey Council of Educational Services Commission – which represents the interests of eight educational services commissions – had standing to challenge the New Jersey State Board of Education's approval of the Middlesex Regional Educational Services Commission's request to change its name to the Educational Services Commission of New Jersey, held the State Board has the statutory authority to approve an educational services commission's name-change application even absent a concomitant application to change the scope of its services, and the State Board's action was not arbitrary and capricious. 

A.W., ETC. VS. MOUNT HOLLY TOWNSHIP BOARD OF EDUCATION IN THE MATTER OF COSTELLO & MAINS, LLC A-0165-16T2

A.W., ETC. VS. MOUNT HOLLY TOWNSHIP BOARD OF EDUCATION IN THE MATTER OF COSTELLO & MAINS, LLC
A-0165-16T2
In this statutory discrimination action under the Law Against Discrimination, the minor plaintiff retained appellant law firm to represent her against a Board of Education for failing to take appropriate steps to address bullying by other students. The retainer agreement provided for a forty-five percent contingent fee or a fee based on hourly rates, whichever was higher. After conducting discovery and surviving a defense summary judgment motion, the case settled pre-trial for $100,000, inclusive of attorney's fees and costs, with plaintiff waiving the right to make application for a fee-shifting award against defendant. Plaintiff then sought approval of the settlement at a friendly hearing without the law firm seeking approval of a contingent fee higher than twenty-five percent of the net recovery pursuant to Rule 1:21-7(f).
The trial court approved the settlement amount and costs, but reduced the contingent fee to twenty-five percent of the net recovery. The court affirmed, holding that in the absence of an application for a fee-shifting award, the contingent fee is limited to twenty-five percent of the minor plaintiff's net recovery in the absence of a successful application for an enhanced fee under Rule 1:21-7(f). 

THE NEW JERSEY SPINE SOCIETY VS. NEW JERSEY SMALL EMPLOYER HEALTH BENEFITS PROGRAM BOARD A-1723-16T4

THE NEW JERSEY SPINE SOCIETY VS. NEW JERSEY SMALL EMPLOYER HEALTH BENEFITS PROGRAM BOARD
A-1723-16T4
The New Jersey Department of Banking and Insurance, Small Employer Health Benefits Program Board (the SEH Board), engaged in

rulemaking in accordance with the expedited procedure established by N.J.S.A. 17B:27A-51 (Section 51), rather than pursuant to the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -31. In doing so, the SEH Board repealed an administrative rule pertaining to out-of-network benefits under certain health insurance plans. We held that the repeal constituted an "action" under the plain language of Section 51, and concluded that the SEH Board correctly relied on Section 51 rather than the APA. 

SHULAMIS ADELMAN,ETC.VS.BSI FINANCIALSERVICES,INC., ET AL. A-3197-15T2

SHULAMIS   ADELMAN,ETC.VS.BSI FINANCIALSERVICES,INC., ET AL. A-3197-15T2
A defendant in a foreclosure case may not fail to diligently pursue a germane defense and then pursue a civil case against the lender alleging fraud by foreclosure. The court affirms the dismissal of a fraud complaint alleging the lender pursued a foreclosure on the original mortgage after the mortgage was modified where the homeowner failed to object to the entry of final judgment in the foreclosure case. 

LIBERTARIANS FOR TRANSPARENT GOVERNMENT, ETC. VS. GOVERNMENT RECORDS COUNCIL, ET AL. A-5563-15T4

LIBERTARIANS FOR TRANSPARENT GOVERNMENT, ETC. VS.
          GOVERNMENT RECORDS COUNCIL, ET AL.

A-5563-15T4
In this appeal the court considers whether draft minutes prepared for a public body's approval and adoption must be provided in response to a request under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The Government Records Council denied the Libertarians For Transparent Government's OPRA request for unapproved minutes, contending they were records exempted from disclosure under the Act as "advisory, consultative, or deliberative material."
As the exemption under OPRA has been construed to encompass the deliberative process privilege, the court evaluated the documents under the privilege's two-pronged test, and determined that the unapproved minutes were both pre-decisional and deliberative. Because draft minutes are a preliminary document subject to revision, they remain "deliberative material" and exempt from the disclosure requirements of OPRA until approved by the public body. 

COLLENEWRONKOVS.NEWJERSEYSOCIETYFORTHEPREVENTION OF CRUELTY TO ANIMALS A-1737-15T1

COLLENEWRONKOVS.NEWJERSEYSOCIETYFORTHEPREVENTION

OF CRUELTY TO ANIMALS
          A-1737-15T1

In this Open Public Records Act (OPRA) litigation, the court considers whether the New Jersey Society for the Prevention of Cruelty to Animals (NJSPCA) should be exempt from complying with OPRA requests because it does not receive public funds and, staffed only with volunteers, it lacks the monies and personnel to facilitate the requests.
Discovery revealed that the NJSCPA had a budget of over $300,000 consisting of private donations and monies collected from municipal fines and penalties assessed on violators of animal cruelty laws. The trial judge determined that the OPRA request was not burdensome; most of the information sought could be found in NJSPCA's tax returns and reports.
The court concluded that because the NJSPCA is a public agency that receives public funds and performs a traditional government function, it is subject to OPRA, and must comply with requests made under the Act. It is the province of the Legislature to exempt the agency from OPRA's mandate. The court affirmed the orders compelling NJSPCA to comply with the Act and awarding plaintiff counsel fees. 

Margo S. Ardan v. Board of Review, Department of Labor and Workforce Development (A-35-16; 077771)

Margo S. Ardan v. Board of Review, Department of Labor
          and Workforce Development (A-35-16; 077771)

          N.J.A.C. 12:17-9.3(b) does not generally impose a
          notice-and-inquiry requirement on every claimant who has
          departed her work because that work aggravated a medical
          condition.  Nonetheless, Ardan failed to meet the burden
          imposed by the regulation.  The Appellate Division panel
          properly decided this appeal based on the version of the
          statute that was in effect when Ardan applied for
          unemployment benefits in 2012.