G.A.-H. VS. K.G.G., ET AL. (L-0418-15, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-2126-16T4)

G.A.-H. VS. K.G.G., ET AL. (L-0418-15, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-2126-16T4)

A forty-four-year-old emergency medical technician engaged in an unlawful sexual relationship with the then fifteen-year-old plaintiff, who, after the EMT was convicted, commenced this action for damages against the EMT, who defaulted, and against – among others – the EMT's employer and co-worker. In this appeal, the court held that the trial judge erroneously limited discovery from the prosecutor's office that investigated the crime and, also, prematurely granted summary judgment in favor of the co-worker and employer. These dispositions precluded a full and clear understanding of the extent to which the co-worker and employer knew or should have known of the EMT's unlawful acts, as well as the extent of the co-worker's relationship with the EMT. These limitations hampered the court's determination of whether it would be appropriate to extend the common-law duty imposed in J.S. v. R.T.H., 155 N.J. 330, 334 (1998) (holding that "a wife who suspects or should suspect her husband of actual or prospective sexual abuse of their neighbors' children has [a] duty of care to prevent such abuse") to a co-worker or employer or both. Thus, the orders under review were either reversed or vacated and the matter remanded for further proceedings.

PAOLO MARANO VS. CLIFFORD J. SCHOB, M.D., ET AL. (L-6604-12, ESSEX COUNTY AND STAEWIDE) (A-3915-16T2)

PAOLO MARANO VS. CLIFFORD J. SCHOB, M.D., ET AL. (L-6604-12, ESSEX COUNTY AND STAEWIDE) (A-3915-16T2)

In Pool v. Morristown Memorial Hospital, 400 N.J. Super. 572, 577 (App. Div. 2008), this court ruled that a worker's compensation lien under N.J.S.A. 34:15-40 attached to funds that an injured plaintiff received from a defendant physician in a medical malpractice case pursuant to the terms of a "high/low" agreement. Pool held that the money paid to plaintiff as the negotiated "low" figure in accordance with the agreement was subject to the statutory lien, even though a jury had rendered a "no cause" verdict in favor of the physician and absolved him of liability. Id. at 575-77.

Similarly, in the present case, despite a "no cause" decision, an injured plaintiff recovered the "low" amount under a high/low agreement he entered into with defendants who provided medical treatment to him after a work-related accident. Relying upon Pool, his employer's workers' compensation carrier seeks to enforce its lien for compensation benefits it paid to plaintiff. Plaintiff argues that N.J.A.C. 11:1-7.3(a)(1), a regulation adopted by the Department of Banking and Insurance exempting certain payments made under a high/low agreement from physician reporting requirements, alters the analysis in Pool. Plaintiff claims the regulation renders the compensation lien unenforceable in this setting. In essence, plaintiff desires a lien-free "low."

The panel rejects plaintiff's novel argument. It concurs with the trial court that the regulation does not affect the validity and enforceability of the carrier's Section 40 lien, and that the lien applies to the proceeds collected by plaintiff from the medical malpractice defendants. A contrary result would allow plaintiff to retain an inappropriate double recovery.

CITY COUNCIL OF THE CITY OF ORANGE TOWNSHIP VS. WILLIS EDWARDS, III (L-1805-13, ESSEX COUNTY AND STATEWIDE) (A-372

CITY COUNCIL OF THE CITY OF ORANGE TOWNSHIP VS. WILLIS EDWARDS, III (L-1805-13, ESSEX COUNTY AND STATEWIDE) (A-3729-15T4)

The Mayor of the City of Orange Township appointed defendant as Acting Business Administrator. Plaintiff did not confirm the appointment, and the municipal ordinance required the mayor to remove acting persons after ninety days. In contravention of the Council's directive and the applicable law, the mayor appointed defendant as Deputy Business Administrator. Defendant thereafter performed functions, signed official documents and collected a salary as the Business Administrator. Following the entry of an order to show cause directing defendant to cease performing all functions of a Business Administrator, defendant left the position. The mayor then appointed him as chief of staff. A second judge vacated certain portions of the order to show cause, but left intact the provision that only a department director had authority to appoint a deputy. Nevertheless, defendant resumed the title and salary, and performed the functions of Business Administrator. N.J.S.A. 40:69A-43.1 provides that only the director of a department may appoint a deputy director. Therefore, the mayor had no authority to appoint defendant to the position. Furthermore, the City abolished the position of deputy business administrator in 1985 by municipal ordinance. The panel finds defendant's appointment as deputy was an illegal act — an act that was ultra vires in the primary sense and, therefore, void. The panel rejects defendant's argument that he accepted the position of Deputy Business Administrator in good faith and with the "reasonable understanding" that the mayor had the authority to appoint him to the post. Defendant is a highly educated man who had served in the state legislature and taught college courses in municipal government and public administration. He acknowledged having reviewed the Faulkner Act, N.J.S.A. 40:69A-1 to -210, and the City ordinances that pertained to his employment. Defendant did not demonstrate any factual dispute in the events surrounding his appointment, nor any ambiguity in the controlling statutes. Because he lacked good faith in accepting and remaining in the post, the panel rejects defendant's argument that he should be permitted to retain his salary under equitable theories of quantum meruit or equitable estoppel. The sole remedy to make the aggrieved taxpayers whole is to disgorge defendant of the monies paid to him during his service in the unlawful appointment.

CAPITAL ONE, N.A. VS. JAMES I. PECK, IV (F-005201-13, ESSEX COUNTY AND STATEWIDE) (A-0582-16T4)

CAPITAL ONE, N.A. VS. JAMES I. PECK, IV (F-005201-13, ESSEX COUNTY AND STATEWIDE) (A-0582-16T4) In a residential foreclosure where an investor such as Freddie Mac owns the note but not the mortgage, the plaintiff must have both the note and a valid assignment of mortgage to have standing to foreclose. Given that defendant knew the servicer for Freddie Mac, given that Freddie Mac is a GSE (government-sponsored enterprise) that publicly declares its policy to foreclose through its servicers, and given that the servicer did possess the note at an earlier foreclosure proceeding and had a valid mortgage assignment, the irregularities are insufficient to defeat this foreclosure. Standing is not jurisdictional in New Jersey, and the equities here favor foreclosure.

WILLIAM F. BRUNT, JR. VS. BOARD OF TRUSTEES, POLICE & FIREMENS'S RETIREMENT SYSTEM, ET AL. (L-1573-16, MONMOUTH COUNTY AND STATEWIDE) (CONSOLIDATED) (A-1406-16T1/A-1457-16T1)

WILLIAM F. BRUNT, JR. VS. BOARD OF TRUSTEES, POLICE & FIREMENS'S RETIREMENT SYSTEM, ET AL. (L-1573-16, MONMOUTH COUNTY AND STATEWIDE) (CONSOLIDATED) (A-1406-16T1/A-1457-16T1)
Absent a contract, statutory provision or court rule authorizing fee-shifting, New Jersey follows the so-called "American Rule," requiring litigants to bear their own litigation costs regardless of who prevails. In this consolidated action, the panel reverses an award of attorneys' fees, jointly and severally, against the Board of Trustees of the Police and Firemen's Retirement System, and plaintiff's former employer, the Township of Middletown.The panel concludes the trial court, in an action in lieu of prerogative writs against the Board, Middletown, and certain of their employees, erroneously awarded counsel fees to plaintiff on equitable grounds. Because there was no legal basis to support the award of those fees, the panel reverses.

Kean Federation of Teachers v. Ada Morell (078926) (Ocean County and Statewide) (A-84-16;

Kean Federation of Teachers v. Ada Morell (078926) (Ocean County and Statewide) (A-84-16; 078926)

There is no obligation to send Rice notices here, where the Board determined from the start to conduct its discussion about faculty reappointments in public session. Turning to the release of meeting minutes, the delay that occurred is unreasonable no matter the excuses advanced by the Board, but the Court modifies the Appellate Division’s holding requiring the Board to set a regular meeting schedule.

Dunbar Homes, Inc. v. Zoning Board of Adjustment of the Township of Franklin (079076) (Somerset County and Statewide) (A-89-16;

Dunbar Homes, Inc. v. Zoning Board of Adjustment of the Township of Franklin (079076) (Somerset County and Statewide) (A-89-16; 079076)

The plain language of the MLUL defines an “application for development” as the application form and all accompanying documents required by ordinance.” N.J.S.A. 40:55D-3. Because Dunbar’s application lacked many of the documents required by the Ordinance, the application was not complete upon submission and does not benefit from the TOA Rule.

BRIAN J. RICE VS. CHRISTINA M. MILLER, ET AL. (L-0451-14,

BRIAN J. RICE VS. CHRISTINA M. MILLER, ET AL. (L-0451-14, CAMDEN COUNTY AND STATEWIDE) (A-2513-16T3)

Tried to a jury, this negligence case arose out of a motor vehicle accident in which the defendant driver struck plaintiff, a pedestrian, as he was attempting to walk one February evening across an eight-lane state highway. Plaintiff alleged defendant was not using her headlights and had failed to observe him in the road until it was too late for her to stop. Defendant asserted that plaintiff unreasonably failed to use a nearby crosswalk located up to about 150 feet from where he crossed. The jury found plaintiff was 75% at fault and defendant was 25%, producing a judgment in defendant's favor pursuant to the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8. On appeal, plaintiff argues, among other things, the trial court issued inappropriate jury instructions concerning the traffic laws and should have taken judicial notice concerning the asserted legality of his attempted crossing. Plaintiff further argues the court erred in allowing, over objection, an investigating police officer, who had not witnessed the accident, to render lay opinion testimony estimating the speed of defendant's car under what is known as the "Searle formula." The trial court properly charged the jury in this setting with both N.J.S.A. 39:4-33, which directs that "[a]t intersections where traffic is directed by a police officer or traffic signal, no pedestrian shall enter upon or cross the highway at a point other than a crosswalk," and N.J.S.A. 39:4-34, which provides that, in the absence of a traffic signal or police officer directing traffic, a pedestrian shall cross "where not prohibited, at right angles to the roadway." The question of whether plaintiff was obligated to use the crosswalk was a fact-dependent jury issue, turning on the actual proximity of the crosswalk, the lighting conditions, and whether it was too dangerous to reach from plaintiff's location. The matter was unsuitable for judicial notice under N.J.R.E. 201. The investigating police officer was not designated in discovery as a defense expert and had denied at his deposition having expert status. Given the esoteric nature of the Searle formula, the officer's testimony was inadmissible under the guise of the lay opinion rule, N.J.R.E. 701, but this error was harmless.

WILLIAM QUAIL, ETC. VS. SHOP-RITE SUPERMARKETS, INC., ET AL. (L-0606-14

WILLIAM QUAIL, ETC. VS. SHOP-RITE SUPERMARKETS, INC., ET AL. (L-0606-14, SUSSEX COUNTY AND STATEWIDE) (A-1164-16T2)

Plaintiff in this wrongful death and survival action principally appeals from the trial court's ruling to exclude from evidence at trial a Certificate of Death that was issued following an examination by the county deputy medical examiner. On the date of the accident, decedent and plaintiff were shopping at defendant's supermarket. Decedent was using a motorized cart. As she went down a narrow aisle, her cart's basket caught on a cash register station, causing the station to fall on her. The accident injured her leg. Decedent stated she was fine and went home, but four days later she was taken to the hospital with complications. She died the following morning.After a deputy medical examiner inspected decedent's body, a Certificate of Death was issued. The Certificate stated that the manner of her death was an "accident" and that the cause of death was "complications of blunt trauma of [the] right lower extremity." The examiner's associated report reiterated these conclusions in more detail. The panel holds that the State Medical Examiner Act, N.J.S.A. 52:17B-92, despite its broad language, does not provide an absolute right to a civil plaintiff to admit the full contents of the Certificate of Death. The hearsay opinions within the Certificate were properly excluded by the trial court under N.J.R.E. 808, the net opinion doctrine, and pertinent case law. Further, the hearsay exception for vital statistics, N.J.R.E. 803(c)(9), does not require admission of the examiner's opinions.

Gerardo Martinez v. Board of Trustees, Police and Firemen’s Retirement System (078823) (Statewide) (A-83-16

Gerardo Martinez v. Board of Trustees, Police and Firemen’s Retirement System (078823) (Statewide) (A-83-16; 078823)

Mount has proven, under requirements established in case law construing N.J.S.A. 43:16A-7(1), that he experienced a terrifying or horror-inducing event and that the event was undesigned and unexpected. The Court remands to the Appellate Division panel to decide Mount’s claim that his mental disability was a direct result of that incident. Martinez has not demonstrated that the incident that caused his disability was undesigned and unexpected and therefore is not entitled to accidental disability benefits pursuant to N.J.S.A. 43:16A-7.

R.A. FEUER VS. MERCK & CO., INC. (C-000042-16, UNION COUNTY AND STATEWIDE) (A-1262-16T3)

R.A. FEUER VS. MERCK & CO., INC. (C-000042-16, UNION COUNTY AND STATEWIDE) (A-1262-16T3)

This appeal involves the scope of a shareholder's right to inspect a corporation's records under N.J.S.A. 14A:5-28 and the common law. Plaintiff, a Merck & Co., Inc. shareholder, appeals from the dismissal of his complaint seeking various Merck corporate records. The panel affirms. It concludes that plaintiff's demand exceeds the scope of "books and records of account, minutes, and record of shareholders," which the court was empowered to permit him to inspect under N.J.S.A. 14A:5-28(4). Plaintiff also misreads a 1988 amendment to the statute, which allows a court to limit a shareholder's inspection, rather than expand it as plaintiff contends. Finally, plaintiff misplaces reliance on the common law. To the extent N.J.S.A. 14A:5-28 does not abrogate residual common law rights of inspection, plaintiff's demand exceeds inspection previously allowed under the common law.

VALERIE GIARUSSO VS. WILLIAM G. GIARUSSO, SR. IN THE MATTER OF CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, PC (FM-02-1561-08,

VALERIE GIARUSSO VS. WILLIAM G. GIARUSSO, SR. IN THE MATTER OF CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, PC (FM-02-1561-08, BERGEN COUNTY AND STATEWIDE) (A-1063-15T4)

The petitioning law firm made application against its former client in the Family Part seeking an award of attorney's fees and costs for post-judgment services rendered to the client to enforce alimony arrears, child support arrears, and equitable distribution owed to her by her ex-husband. The law firm also sought Imposition of a charging lien and entry of a judgment by the Family Part. The court holds the petitioning law firm was not entitled to a charging lien for unpaid services rendered post-judgment to enforce previously awarded relief obtained through the efforts of prior counsel.The court further holds that the petitioning law firm could obtain judgment in the Family Part against its former client for the reasonable amount of unpaid fees without filing a separate action in the Law Division. The court remanded the issue of the reasonableness of the fees sought by law firm to the Family Part for the development of a reviewable record.