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