SUNDIATA ACOLI VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) (A-5645-16T2)

SUNDIATA ACOLI VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) (A-5645-16T2)

This court affirmed the denial of parole to a convicted murderer of a State Trooper. On remand, the full Board questioned Acoli about his rehabilitative efforts and his previous assertion that he was unconscious during the 1973 shooting. The Board found his responses were insincere, rehearsed, shallow, emotionless, contradictory, and implausible. After finding he lacked insight into his criminal behavior, the Board determined there was a substantial likelihood that Acoli would commit another crime if released at this time.

Judge Rothstadt dissented.

SAMUEL MARTIN, III VS. NEWARK PUBLIC SCHOOLS (A-0338-18T4)

SAMUEL MARTIN, III VS. NEWARK PUBLIC SCHOOLS (A-0338-18T4)

Petitioner applied to the Workers' Compensation Court for reimbursement of continued prescription opioid medication as part of his need for palliative care to treat a lower back injury suffered while he was working for respondent employer.

The compensation judge declined to compel the employer to pay for petitioner's prescription opioid medication in accordance with N.J.S.A. 34:15-15 of the Workers' Compensation Act. The statute requires employers to provide treatment to injured employees when the treatment is "necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible . . . ." After six years of treating with the same physician who prescribed his pain medication, petitioner's pain had not been alleviated with either therapy or medication.

The court affirmed the compensation judge, holding petitioner failed to prove continued opioid treatment would cure or relieve his injury and return him to better function. The court found N.J.S.A. 34:15-15 requires proof that opioid medication provides curative relief and that continued use of opioids improves the function of the injured worker.

STATE OF NEW JERSEY VS. RAQUEL RAMIREZ STATE OF NEW JERSEY VS. JORGE OROZCO (14-07-0599, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) (A-4250-16T4/A-5060-16T4)

STATE OF NEW JERSEY VS. RAQUEL RAMIREZ STATE OF NEW JERSEY VS. JORGE OROZCO (14-07-0599, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) (A-4250-16T4/A-5060-16T4)

A jury convicted defendants, the mother and father of a two-year-old daughter, of reckless manslaughter and aggravated manslaughter respectively, and endangering the welfare of a child. The child died of blunt force head trauma and suffered numerous other internal and external injuries. Both defendants provided statements to law enforcement, but neither admitted causing the child's death, and the State had no eyewitnesses to any assault.

The State contended both defendants could be found guilty as principals or accomplices, and it urged the judge to provide instructions pursuant to N.J.S.A. 2C:2-6(c)(1)(c) (subsection 1(c)). That provides one may be an accomplice of another if "[w]ith the purpose of promoting or facilitating the commission of an offense . . . [and] [h]aving a legal duty to prevent the commission of the offense, fails to make a proper effort so to do[.]"

Relying on this court's decision in State v. Bass, 221 N.J. Super. 466 (App. Div. 1987), the only reported decision dealing with accomplice liability under subsection 1(c), and at the prosecutor's urging, the judge's jury charge carved out a separate basis for accomplice liability under Bass. The charge failed to tell jurors that in order to find a defendant guilty under subsection 1(c), they must find that defendant's failure to act was accompanied by a purpose to promote or facilitate the other's commission of a crime. The court specifically disapproved of Bass to the extent it implied otherwise, and reversed defendants' convictions.

HENRY PULLEN, ET AL. VS. DR. AUBREY C. GALLOWAY, ET AL. (L-1768-18, MIDDLESEX COUNTY AND STATEWIDE) (A-1373-18T2)

HENRY PULLEN, ET AL. VS. DR. AUBREY C. GALLOWAY, ET AL. (L-1768-18, MIDDLESEX COUNTY AND STATEWIDE) (A-1373-18T2)

The court held that a New York doctor who provided medical treatment to a New Jersey resident at a New York hospital was not subject to personal jurisdiction in New Jersey in a lawsuit alleging wrongful death and survivor claims resulting from the medical treatment. Moreover, web-based videos and internet postings describing the doctor's practice are insufficient contacts by themselves to support personal jurisdiction.

RAYMOND NESBY, ET AL. VS. SHERYL FLEURMOND, ET AL. (L-1923-16, MIDDLESEX COUNTY AND STATEWIDE) (A-0958-16T4)

RAYMOND NESBY, ET AL. VS. SHERYL FLEURMOND, ET AL. (L-1923-16, MIDDLESEX COUNTY AND STATEWIDE) (A-0958-16T4)

In this automobile insurance coverage action, plaintiff sought recovery of his unpaid medical expenses from the defendant carriers that issued policies to the tortfeasor's mother and sister, with whom the tortfeasor resided. Plaintiff had exhausted his personal injury protection (PIP) benefits. And, he settled his claims with the tortfeasor and owner of the vehicle by accepting the policy limit under the owner's policy. Because plaintiff was not a named insured under the tortfeasor's relatives' policies, did not reside with the named insureds nor occupy a vehicle insured under those policies – and released the tortfeasor from any and all claims arising from the accident – the court held his claims against the defendant insurers fail.

NEW JERSEY TRANSIT CORPORATION VS. CERTAIN UNDERWRITERS AT LLOYD'S LONDON, ET AL. (L-6977-14, ESSEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-1026-17T

NEW JERSEY TRANSIT CORPORATION VS. CERTAIN UNDERWRITERS AT LLOYD'S LONDON, ET AL. (L-6977-14, ESSEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-1026-17T1/A-1027-17T1)

For the period from July 2012 to July 2013, New Jersey Transit (NJT) had insurance policies that provided up to $400 million in coverage for property damage, but included a $100 million sublimit for losses generally "caused by flood." The damage to NJT property sustained during Superstorm Sandy came within the specific definitions in the policies of damage caused by "wind driven water" or a "storm surge" associated with a "named windstorm." Therefore, NJT's Sandy-related property damages do not fall within the general definition of losses "caused by flood," and are not subject to the $100 million flood sublimit.

JOSEPH JARDIM VS. MICHAEL EDWARD OVERLEY (L-2341-18, UNION COUNTY AND STATEWIDE) (A-1073-18T3)

JOSEPH JARDIM VS. MICHAEL EDWARD OVERLEY (L-2341-18, UNION COUNTY AND STATEWIDE) (A-1073-18T3)

This appeal calls for the court to revisit the application of traditional constitutional principles of personal jurisdiction and due process in the context of a retail sale contract made over the Internet.

After viewing an Internet posting that advertised a vintage car for sale, a New Jersey customer sent an email to the California owner offering to buy it. The seller responded with a counteroffer, and the parties swiftly agreed on a price. The buyer arranged to have the purchased car shipped from California to New Jersey. When the vehicle arrived here, the buyer discovered it was in poor condition. He sued the seller in the Law Division. The seller moved to dismiss the complaint for lack of in personam jurisdiction. The judge granted the motion, and the buyer now appeals.

The court affirms the dismissal of the complaint for lack of personal jurisdiction over the California seller. The seller in this one-time-sale scenario did not "purposely avail" himself of this State's retail market to a degree that rises to the level of "minimum contacts" needed to support personal jurisdiction under the Due Process Clause.

The parties' follow-up communications that occurred after they agreed on the car's price were insufficient to create a jurisdictional nexus to New Jersey. In addition, their simple contractual documents lacked a forum selection clause, which could have specified New Jersey as an agreed-upon forum.

The court does not foreclose a finding of specific jurisdiction in future Internet retail sale contexts in which more extensive transactional activities connected to this State occur.

C.R. VS. M.T. (FV-08-0021-19, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0139-18T4)

C.R. VS. M.T. (FV-08-0021-19, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0139-18T4)

The trial judge found, in this action under the Sexual Assault Survivor Protection Act (SASPA), N.J.S.A. 2C:14-13 to -21, that plaintiff's claim that she did not consent to a sexual encounter, or that she submitted out of fear, was in equipoise with defendant's contention that the sexual encounter was consensual. But, in entering a restraining order in plaintiff's favor, the judge determined that plaintiff was extremely intoxicated and incapable of consenting. Applying the definition of "mentally incapacitated" in N.J.S.A. 2C:14-1(i), the court determined that the intoxication required to render the alleged victim incapable of consenting could have been voluntarily consumed. And the court held that the intoxication level required to render an alleged victim incapable of consenting must have caused a prostration of faculties. Because the judge did not apply the prostration standard, the court remanded for further proceedings.

BRENDA MILLER V. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK (A-0078-16T3)

BRENDA MILLER V. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK (A-0078-16T3)
Petitioner, a former employee of the Newark school district, appealed from a Commissioner of Education decision finding that time she was employed in various classified Civil Service secretarial positions could not be used to calculate her entitlement to tenure under N.J.S.A. 18A:17-2. The statute provides that board of education employees holding secretarial or clerical positions obtain tenure after employment for three consecutive years and the beginning of the next succeeding school year. Although petitioner was employed in secretarial positions for more than three consecutive years, the Commissioner determined petitioner did not obtain tenure because under N.J.S.A. 18A:28-2 petitioner's employment in classified Civil Service secretarial titles did not satisfy the requirements of N.J.S.A. 18A:17-2.

KEVIN BLANCHARD VS. NEW JERSEY DEPARMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) (A-3834-17T4)

KEVIN BLANCHARD VS. NEW JERSEY DEPARMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) (A-3834-17T4)

In this Department of Corrections disciplinary appeal, the court holds that the Department acted arbitrarily, capriciously or unreasonably in denying a confirmatory laboratory test of a powder, seized from the inmate, which a field test indicated contained cocaine. The court reaches this conclusion in light of the field test's inherent limitations; the lack of other direct or circumstantial evidence that the inmate possessed drugs; the department's regulation compelling routine confirmatory tests of drug specimens; and the absence of any reasoned explanation for the Department's refusal to subject the seized powder to a confirmatory laboratory test.

DAVID M. NAMEROW, M.D. v. PEDIATRICARE ASSOCIATES, LLC, SCOTT ZUCKER, M.D., JEFFREY M. BIENSTOCK, M.D., AND MELISSA CHISM, M.D.(C-000273-17)

DAVID M. NAMEROW, M.D. v. PEDIATRICARE ASSOCIATES, LLC, SCOTT ZUCKER, M.D., JEFFREY M. BIENSTOCK, M.D., AND MELISSA CHISM, M.D.(C-000273-17)

Defendants filed a motion for partial summary judgment to which plaintiff responded with a cross-motion for partial summary judgment. On January 1, 2000, the parties entered into an Operating Agreement in order to form the limited liability company, PediatriCare. Subsequently, on March 12, 2001, the parties executed an amended and restated Operating Agreement, which was the operative document governing the relationship. In January 2016, plaintiff announced his intention to retire, which triggered Section 10 of the Operating Agreement. Section 10 provided the process for calculating the retirement purchase price, which required a net worth valuation methodology, in order to determine a value for a negotiated buyout price of plaintiff. However, various calculations of fair market valuation were done in order to effectuate a settlement as to a voluntary buy-out number, which the parties agree was never reached

Defendants then sought to invoke the net worth valuation of Section 10 of the Operating Agreement. Plaintiff argued that over a sixteen-year period, the Operating Agreement was modified to use the fair market value as opposed to a net worth valuation, based on the parties’ conduct over this time period. Defendants argue that the Operating Agreement is clear in its express provision concerning how to calculate the buyout price. Moreover, defendants note that the Operating Agreement also unambiguously states that it may be modified only through a vote of 80% of the membership interests in the company, and not through the course of conduct that plaintiff contends. The court found, upon reviewing the plain language of the Operating Agreement, and upon a lack of evidence that it was changed by the remaining members, that the net worth valuation methodology remained a part of the Operating Agreement and was the correct method for a retirement purchase price.

In addition, plaintiff suffered no oppression since the economic loss doctrine bars recovery when entitlement flows from the Operating Agreement. There was also no breach of fiduciary duty when the members acted in conformity with the provisions of the Operating Agreement. The court ultimately granted in part, and denied in part, defendants’ motion for partial summary judgment. As such, the court dismissed Counts I, II, and III of plaintiff’s second amended complaint.

Christine Minsavage v. Board of Trustees, Teachers’ Pension and Annuity Fund (081507) (Statewide) (A-48-18; 081507)

Christine Minsavage v. Board of Trustees, Teachers’ Pension and Annuity Fund (081507) (Statewide) (A-48-18; 081507)

Neither membership nor prior approval of a retirement application is required for modification of a retirement selection where good cause, reasonable grounds, and reasonable diligence are shown. The Court remands this matter for further proceedings to allow petitioner Christine Minsavage the opportunity to argue in favor of modification under that standard.

Christine Minsavage v. Board of Trustees, Teachers’ Pension and Annuity Fund (081507) (Statewide) (A-48-18; 081507)

Christine Minsavage v. Board of Trustees, Teachers’ Pension and Annuity Fund (081507) (Statewide) (A-48-18; 081507)

Neither membership nor prior approval of a retirement application is required for modification of a retirement selection where good cause, reasonable grounds, and reasonable diligence are shown. The Court remands this matter for further proceedings to allow petitioner Christine Minsavage the opportunity to argue in favor of modification under that standard.

CRAIG SASHIHARA, ETC. VS. NOBEL LEARNING COMMUNITIES, INC., ETC. (L-2227-16, BURLINGTON COUNTY AND STATEWIDE) (A-0603-18T1)

CRAIG SASHIHARA, ETC. VS. NOBEL LEARNING COMMUNITIES, INC., ETC. (L-2227-16, BURLINGTON COUNTY AND STATEWIDE) (A-0603-18T1)

In this case the court held the Director of the Division of Civil Rights does not have the general authority to sue in Superior Court, the Superior Court may not grant permanent injunctive relief on the director's complaint, and the New Jersey Law Against Discrimination does not recognize a claim for failure to contract with parents of a disabled child.

A.J. v. R.J. (FM-20-0954-13, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1168-18T4)

A.J. v. R.J. (FM-20-0954-13, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1168-18T4)
Plaintiff A.J. appeals from a September 28, 2018 order sanctioning her by transferring custody of the parties' children to defendant R.J., for failure to comply with a prior order related to her unilateral intra-state relocation. We hold in cases where a court exercises its authority pursuant to Rules 1:10-3 and 5:3-7(a)(6), it must make findings under N.J.S.A. 9:2-4 that the sanction imposed is in the best interests of the children. We further hold the factors in Baures v. Lewis, 167 N.J. 91 (2001) no longer apply when a court is addressing an intra-state relocation, and instead, pursuant to Bisbing v. Bisbing, 230 N.J. 309 (2017), the court must apply N.J.S.A. 9:2-4. Because the trial judge applied the wrong law related to the intra-state relocation and did not apply N.J.S.A. 9:2-4 when he sanctioned plaintiff, we reverse and remand for further proceedings consistent with this opinion.

MARISOL RAJI VS. ALFONSO SAUCEDO, ET AL. (DC-008329-18, MIDDLESEX COUNTY AND STATEWIDE) (A-1629-18T1)

MARISOL RAJI VS. ALFONSO SAUCEDO, ET AL. (DC-008329-18, MIDDLESEX COUNTY AND STATEWIDE) (A-1629-18T1)

In considering the nature of a "pay-and-go" consent judgment, which resolved a summary dispossess action, and the judgment's impact on later-asserted claims for damages, we hold that by entering into such a consent judgment the parties entered into an accord and satisfaction and thereby finally resolved all the known claims arising out of the tenancy. Consequently, we affirm the trial court's rejection of the tenants' counterclaim in the landlord's subsequent action for enforcement of the pay-and-go judgment because the counterclaim was based on a claim then known to the tenants that they should have raised during the negotiations that led to the pay-and-go judgment.

JOHNSON & JOHNSON VS. DIRECTOR, DIVISION OF TAXATION, ET AL. (TAX COURT OF NEW JERSEY) (A-5423-17T3)

JOHNSON & JOHNSON VS. DIRECTOR, DIVISION OF TAXATION, ET AL. (TAX COURT OF NEW JERSEY) (A-5423-17T3)

In this appeal, we address the issue of whether, following the Legislature's 2011 amendment of N.J.S.A. 17:22-6.64, plaintiff Johnson & Johnson (J&J) was required to pay an insurance premium tax (IPT) based upon all the risks it insured throughout the United States or based upon only those risks localized in New Jersey. Because both before and after the 2011 amendment, N.J.S.A. 17:22-6.64 provided that IPT was to be calculated at the rate of "5% of the gross amount of such premium" paid for insurance procured "upon a subject of insurance resident, located or to be performed within [New Jersey]," we conclude that J&J's IPT obligation should have continued to be based solely upon the risks it insured that were located within New Jersey, rather than upon the total United States premium for the applicable coverage policies. Accordingly, we reverse the Tax Court's contrary interpretation of the statute which is at odds with the plain language of N.J.S.A. 17:22-6.64, and remand for further proceedings.

Barbara Orientale v. Darrin L. Jennings (079953) (Middlesex County and Statewide) (A-43-17;

Barbara Orientale v. Darrin L. Jennings (079953) (Middlesex County and Statewide) (A-43-17; 079953)

The Court brings the use of remittitur and additur in line with basic notions of fair play and equity. When a damages award is deemed a miscarriage of justice requiring the grant of a new trial, then the acceptance of a damages award fixed by the judge must be based on the mutual consent of the parties. Going forward, in those rare instances when a trial judge determines that a damages award is either so grossly excessive or grossly inadequate that the grant of a new damages trial is justified, the judge has the option of setting a remittitur or an additur at an amount that a reasonable jury would award given the evidence in the case. Setting the figure at an amount a reasonable jury would award -- an amount that favors neither side -- is intended to give the competing parties the greatest incentive to reach agreement. If both parties accept the remittitur or additur, then the case is settled; if not, a new trial on damages must proceed before a jury.

CLEMENTINE BATA V. GEORGE KONAN (FD-07-00767-19)

CLEMENTINE BATA V. GEORGE KONAN (FD-07-00767-19)

This matter comes before the court on plaintiff’s application and defendant’s counterclaim. In her application, plaintiff seeks, among other things, an initial custody determination concerning the parties’ minor child. In his counterclaim, defendant opposes plaintiff’s application and contests jurisdiction. Plaintiff, the child’s natural mother, resides in New Jersey. Defendant, the child’s natural father, resides in New York.

DAVID SCOTT LANDAU VS. STACY LANDAU (FM-14-1196-12, MORRIS COUNTY AND STATEWIDE) (A-1240-18T4)

DAVID SCOTT LANDAU VS. STACY LANDAU (FM-14-1196-12, MORRIS COUNTY AND STATEWIDE) (A-1240-18T4)

The question presented by this appeal, here on leave granted, is whether the changed circumstances standard of Lepis v. Lepis, 83 N.J. 139, 157 (1980), continues to apply to a motion to suspend or terminate alimony based on cohabitation following the 2014 amendments to the alimony statute, N.J.S.A. 2A:34-23(n). We determine the party seeking modification still has the burden of showing the changed circumstance of cohabitation so as to warrant relief from an alimony obligation, see Martindell v. Martindell, 21 N.J. 341, 353 (1956), and hold the 2014 amendments to the alimony statute did not alter the requirement that "[a] prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status." Lepis, 83 N.J. at 157. Because the trial court ordered discovery in this case without a prima facie showing of changed circumstances, we reverse.

Donna Rowe v. Bell & Gossett Company(081602)(Middlesex County and Statewide) (A-16-18;

Donna Rowe v. Bell & Gossett Company(081602)(Middlesex County and Statewide) (A-16-18; 081602)

The excerpts from the settling defendants’ interrogatory answers and corporate representative depositions were admissible as statements against interest under N.J.R.E. 803(c)(25). Those statements, in combination with other evidence presented at trial, gave rise to a prima facie showing that the settling defendants bore some fault in this matter. The trial court properly submitted to the jury the question of whether a percentage of fault should be apportioned to the settling defendants.

DAVID SCOTT LANDAU VS. STACY LANDAU (FM-14-1196-12, MORRIS COUNTY AND STATEWIDE) (A-1240-18T4)

DAVID SCOTT LANDAU VS. STACY LANDAU (FM-14-1196-12, MORRIS COUNTY AND STATEWIDE) (A-1240-18T4) The question presented by this appeal, here on leave granted, is whether the changed circumstances standard of Lepis v. Lepis, 83 N.J. 139, 157 (1980), continues to apply to a motion to suspend or terminate alimony based on cohabitation following the 2014 amendments to the alimony statute, N.J.S.A. 2A:34-23(n). We determine the party seeking modification still has the burden of showing the changed circumstance of cohabitation so as to warrant relief from an alimony obligation, see Martindell v. Martindell, 21 N.J. 341, 353 (1956), and hold the 2014 amendments to the alimony statute did not alter the requirement that "[a] prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status." Lepis, 83 N.J. at 157. Because the trial court ordered discovery in this case without a prima facie showing of changed circumstances, we reverse.

IN THE MATTER OF THOMAS ORBAN/SQUARE PROPERTIES, LLC, FRESHWATER WETLANDS GENERAL PERMIT 6 NO. 1XXX-XX-0003.1 FWW070001, CHALLENGED BY SAVE HAMILTON OPEN SPACE (DEPARTMENT OF ENVIRONMENTAL PROTECTION) (A-3072-16T2)

IN THE MATTER OF THOMAS ORBAN/SQUARE PROPERTIES, LLC, FRESHWATER WETLANDS GENERAL PERMIT 6 NO. 1XXX-XX-0003.1 FWW070001, CHALLENGED BY SAVE HAMILTON OPEN SPACE (DEPARTMENT OF ENVIRONMENTAL PROTECTION) (A-3072-16T2)

Save Hamilton Open Space, a local citizens group, challenged the Department of Environmental Protection's issuance of a freshwater wetlands general permit 6 to Thomas Orban/Square Properties, LLC in connection with the construction of a shopping center in Hamilton Township

The court affirms the Commissioner's decision that SHOS is not entitled to an adjudicatory hearing. Because the court is unable, however, to discern where the agency has explained why Square Properties' use of the GSR-32 methodology to calculate recharge is consonant with the Department's regulations, which appear to expressly prohibit its use in these circumstances, it vacates the GP6 permit and remands for further fact-finding. In light of this disposition, the court does not address SHOS's argument that the agency needed to proceed through rulemaking.

STATE OF NEW JERSEY VS. TEOSHIE WILLIAMS (14-09-0992, MIDDLESEX COUNTY AND STATEWIDE) (A-3944-16T2)

STATE OF NEW JERSEY VS. TEOSHIE WILLIAMS (14-09-0992, MIDDLESEX COUNTY AND STATEWIDE) (A-3944-16T2)

In this appeal, the court addressed whether police officers must inform the occupant of a residence that he or she has the right to refuse the officers' request to enter the residence. The court determined that while officers are required to inform the occupant of the right to refuse to consent to a search of the premises, a similar requirement does not apply to requests to simply enter the residence. Finding that the initial entry into defendant's apartment based on her consent to enter was permissible, the court affirmed the trial court's denial of defendant's motion to suppress evidence seized in a subsequent consent search of the apartment following a lawful protective sweep.

SCOTT ROGOW (DECEASED) V. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (A-1346-17T2)

SCOTT ROGOW (DECEASED) V. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (A-1346-17T2)

Scott Rogow was a firefighter with the City of Paterson who retired on an accidental disability retirement allowance under N.J.S.A. 43:16A-7 and received his monthly accidental disability retirement allowance until his death approximately six years later. Approximately four years after his death, Rogow's widow, who had already received her survivor accidental disability benefits under N.J.S.A. 43:16A-7(3), filed a request with the Board to amend Rogow's pension status so that she could receive the enhanced survivor accidental death benefits under N.J.S.A. 43:16A-10.

N.J.S.A. 43:16A-10(1) provides for payment of survivor accidental death benefits "[u]pon the death of a member in active service as a result of . . . an accident met in the actual performance of duty at some definite time and place[.]" The court held that a PFRS member who is retired and receiving a retirement allowance from the PFRS at the time of his death is not a "member in service" and thus is not entitled to accidental death benefits under N.J.S.A. 43:16A-10.

MERRILL CREEK RESERVOIR C/O PROJECT DIRECT VS. HARMONY TOWNSHIP (TAX COURT OF NEW JERSEY) (CONSOLIDATED) (A-1498-16T3/A

MERRILL CREEK RESERVOIR C/O PROJECT DIRECT VS. HARMONY TOWNSHIP (TAX COURT OF NEW JERSEY) (CONSOLIDATED) (A-1498-16T3/A-1500-16T3/A-1509-16T3)

Plaintiff Merrill Creek Reservoir c/o Project Direct, a consortium of electric utility companies and owner of the Merrill Creek Reservoir in Harmony Township, challenges three 2016 Tax Court judgments affirming the 2011-2013 tax assessments on its property. Harmony cross-appeals alleging error in adjustments the Tax Court made to value. Merrill Creek concedes the improvements should be valued using the cost approach the Tax Court employed but argues the Tax Court erred in accepting the Township's trend analysis, which it characterized as "a rarely used valuation methodology, discredited by New Jersey Tax Court precedent," instead of its own quantity survey method. Finding no error in the court's acceptance of a trend analysis in this case or its adjustments to value based on the evidence adduced at trial, we affirm the opinion of the Tax Court whose opinion is reported at 29 N.J. Tax 487 (Tax 2016).

MOSHE ROZENBLIT, ET AL. VS. MARCIA V. LYLES, ET AL. (C-000002-17, HUDSON COUNTY AND STATEWIDE) (A-1611-17T1)

MOSHE ROZENBLIT, ET AL. VS. MARCIA V. LYLES, ET AL. (C-000002-17, HUDSON COUNTY AND STATEWIDE) (A-1611-17T1)

This appeal challenges the legality of a section in the collective bargaining agreement (CBA) entered into between the Jersey City Board of Education and the Jersey City Education Association, Inc., which requires the Board to pay the salaries and benefits of two teachers who were selected by the members of the union to serve as "president and his/her designee," during the three-year term of the CBA, and to allow them to devote all of their work-time to the business and affairs of the union.

The Chancery Division, General Equity Part found this contractual arrangement did not violate Article VIII, § 3, ¶ 3 of the New Jersey Constitution, commonly referred to as the "gift clause." The court found the Board was authorized to enter into this arrangement with the union under N.J.S.A. 18A:30-7, which permits the payment of salary in cases of absence not constituting sick leave.

This court adheres to jurisprudential principles established by our Supreme Court and declines to reach the constitutional question raised by plaintiffs in this case because there are sufficient statutory grounds to definitively decide this appeal. In re Plan for the Abolition of the Council on Affordable Hous., 214 N.J. 444, 461 (2013). This court holds that in adopting N.J.S.A. 18A:30-7, the Legislature did not expressly or implicitly intend to authorize boards of education to enter into this type of contractual arrangement. The disbursement of public funds pursuant to this contractual arrangement was an ultra vires act by the Board.

DCPP V. K.G., IN THE MATTER OF M.G. AND J.C.W., MINORS (FG-19-0024-16, SUSSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1556-17T2)

DCPP V. K.G., IN THE MATTER OF M.G. AND J.C.W., MINORS (FG-19-0024-16, SUSSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1556-17T2)

This appeal involves the trial court's denial of defendant's request to have the same counsel represent him in Title Nine abuse and neglect proceedings and a criminal matter arising from the same allegations of sexual abuse of a child. In N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593 (App. Div. 2010), we held that simultaneous representation is permissible where the trial court is able to implement measures sufficient to protect the confidentiality of DCPP records disclosed during the Title Nine proceedings. We directed courts to undertake a case-by-case analysis when deciding requests for simultaneous representation.

The panel held that the trial court failed to undertake the analysis required by N.S. and summarily denied defendant's request for simultaneous representation. In addition, the panel clarified that N.S. applies to both Title Nine dispositional hearings and Title Nine fact finding hearings. Finally, the panel held that the denial of defendant's choice of counsel was a structural error requiring reversal of the abuse and neglect finding reached after a hearing at which defendant was represented by counsel that was not his choice.

OPEX REALTY MANAGEMENT, LLC V. ROBERT TAYLOR AND MILDRED TAYLOR (LT-034082-18)

OPEX REALTY MANAGEMENT, LLC V. ROBERT TAYLOR AND MILDRED TAYLOR (LT-034082-18)

In this landlord-tenant case, the court was charged with deciding whether the City of Newark’s rent control ordinance prohibited the assessment of “additional rent,” for purposes of a summary dispossess action, if the total amount assessed, including this contractually provided for “additional rent,” exceeded the maximum rent permitted by the ordinance. The court answered the question in the affirmative.

This was an action seeking eviction for non-payment of rent. The tenant brought a motion arguing that the local rent control ordinance prohibited the incorporation of additional rent of the kind that was at issue in a summary dispossess action. The tenant argued that the ordinance established a maximum rent cap and any rent that exceeded that amount could not form a basis for eviction. The tenant further argued that regardless of whether defined as “additional rent,” fees should be considered in the ordinance’s definition of “rent” and thus capped thereby. The landlord countered that assessing the additional rent was not contrary to the subject ordinance and the lease expressly provided for such assessment. The landlord further argued that the fees sought are such a common form of additional rent that the local ordinance’s failure to specifically exclude it in the definition should be understood to be mean that the ordinance does not prohibit it.

The court held that the landlord was not entitled to evict the tenant based upon the failure to pay the “additional rent,” notwithstanding that the lease memorialized that legal and late fees were collectible as “additional rent.” The court found that the total amount of rent that could be assessed and thus put at issue in a summary dispossess case was limited by the local ordinance. The court established that the assessment of “additional rent” is still the imposition of rent, and because the ordinance governs all rent without exception, the rent could not exceed the municipal ordinance rate cap. Accordingly, the landlord was disallowed from seeking any rents in excess of the maximum rent permitted by the ordinance in a summary dispossess action. The landlord’s contractual remedy was preserved.

E.S. v. C.D. (FV-02-1094-19)

E.S. v. C.D. (FV-02-1094-19)

This case is a domestic violence action in which plaintiff had employed defendant as a nanny. The issue is whether plaintiff is a party entitled to protection under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, given the economic relationship of the parties. It is held that under the circumstances, plaintiff is a party entitled to such protection.

RACETRACK SUPERMARKET, LLC. V. THE MAYOR AND TOWNSHIP COUNCIL OF CHERRY HILL (L-003400-16)

RACETRACK SUPERMARKET, LLC. V. THE MAYOR AND TOWNSHIP COUNCIL OF CHERRY HILL (L-003400-16)

Plaintiffs sought recusal of assigned trial judge based upon alleged violation of "objectively reasonable" standard of impropriety set forth in DeNike v. Cupo, 196 N.J. 502 (2008) based on the alleged personal animus of the judge against plaintiffs’ counsel. Before becoming a member of the judiciary, the judge had been a candidate for local office in his town approximately 14 years prior. Plaintiffs’ counsel was a member of the opposite party and also resided in the same town and was politically active. Plaintiffs’ counsel alleged that anonymous and other sources had indicated the judge held him responsible for campaign materials which called into question the judge’s character and fitness for office during the campaign in 2004. Plaintiffs’ counsel alleged the judge, when he was county chairman, took action to thwart his renomination to a state commission in 2013 four years before joining the judiciary, which was alleged to evidence the judge’s personal animus. Additionally, the judge had also served as county chairman of his political party for the 6 years prior to joining the judiciary. During this time, the son of the principal member of plaintiff LLC was an elected official in the judge’s home town and a member of the judge’s opposite party during which time the judge, as county chairman, had supported the members of his own party over the principal member’s son.

The court held that, under the DeNike standard, a reasonable, fully-informed person would not have doubts about the judge’s impartiality under the circumstances in this matter. The court considered the lack of a prospective financial benefit to the judge, the remoteness in time of the alleged statements by the judge to the present matter, the lack of evidence of a continuous personal animus, the professional dealings between Plaintiff’s counsel and the judge when he was a practicing attorney, and the fact that Plaintiffs’ counsel’s firm, of which Plaintiffs’ counsel was a named partner, had previously appeared before the judge without objection or incident, all weighed against recusal under the standard. The court also found political motive is not objective evidence of personal animus. The motion to recuse was denied.

JODI SHAW, ET AL. VS. BRIAN SHAND, ET AL. (L-0408-16, SUSSEX COUNTY AND STATEWIDE) (A-5686-17T1)

JODI SHAW, ET AL. VS. BRIAN SHAND, ET AL. (L-0408-16, SUSSEX COUNTY AND STATEWIDE) (A-5686-17T1)

In this interlocutory appeal, the court considers whether a licensed home inspector home inspector is a "learned professional" and therefore excluded from liability under Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1 to -210.

Considering the CFA's remedial purpose and applying well-established canons of statutory construction, the court concludes that the judicially created learned professional exception must be narrowly construed to exempt liability only as to those professionals who have historically been recognized as "learned" based on the requirement of extensive learning or erudition. To the extent this court's prior decisions, including Plemmons v. Blue Chip Insurance Services, Inc., 387 N.J. Super. 551 (App. Div. 2006), have applied the learned professional exception to "semi-professionals" who are regulated by a separate regulatory scheme, we are constrained to depart from that reasoning as inconsistent with the Supreme Court's decision in Lemelledo v. Beneficial Management Corp. of America, 150 N.J. 255 (1997). As the Court explicitly held in Lemelledo, the existence of a separate regulatory scheme will "overcome the presumption that the CFA applies to a covered activity" only when "a direct and unavoidable conflict exists between application of the CFA and application of the other regulatory scheme or schemes." 150 N.J. at 270. The court's decision today comports with the amicus curiae Attorney General's persuasive interpretation of the CFA and addresses the Attorney General's policy concern that an expansive interpretation of the learned professional exception unduly curtails the authority of the Attorney General and the Division of Consumer Affairs to protect New Jersey consumers and limits the redress available to private litigants.

Accordingly, because home inspectors are not historically recognized learned professionals and because no direct and unavoidable conflict exists between the CFA and the regulations governing home inspectors, the court concludes that the CFA applies to the activities of licensed home inspectors and reverses the trial court's summary judgment dismissal of the CFA claim against defendants.

Judge Sabatino filed a concurring opinion.

KEVIN HARVARD V. STATE OF NEW JERSEY JUDICIARY, ATLANTIC-CAPE MAY VICINAGE (A-5091-15T1)

KEVIN HARVARD V. STATE OF NEW JERSEY JUDICIARY, ATLANTIC-CAPE MAY VICINAGE (A-5091-15T1)

This case stemmed from the termination of the appointment of a Special Civil Part Officer (SCPO) following the discovery of numerous violations of AOC directives. The SCPO filed a Law Division complaint against the State, the Judiciary, and the Atlantic/Cape May vicinage alleging violations of CEPA and related claims. We affirm the summary judgment dismissal of plaintiffs' claims since plaintiff was not a Vicinage employee for CEPA purposes and plaintiff failed to establish a whistle-blower claim under CEPA. This opinion was originally issued in January 2018 as an unpublished opinion. We now publish this opinion, following a request from the Committee of the Special Civil Part Supervising Judges, which submitted "that the publication of this opinion will provide important precedent to our records, practitioners and the public with regard to [SCPOs] and their status as independent contractors."

MONMOUTH MEDICAL CENTER VS. STATE FARM INDEMNITY COMPANY SAINT BARNABAS MEDICAL CENTER VS. STATE FARM INDEMNITY COMPANY (L-2482-17 AND L-0126-18, MORRIS COUNTY AND STATEWIDE) (CONSOLIDATED) (A-3004-17T1/A-4208-17T1)

MONMOUTH MEDICAL CENTER VS. STATE FARM INDEMNITY COMPANY SAINT BARNABAS MEDICAL CENTER VS. STATE FARM INDEMNITY COMPANY (L-2482-17 AND L-0126-18, MORRIS COUNTY AND STATEWIDE) (CONSOLIDATED) (A-3004-17T1/A-4208-17T1)

In these back-to-back appeals, State Farm Indemnity Company (State Farm) appeals from two trial court orders that vacated awards entered by dispute resolution professionals (DRP) pursuant to the Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30, in connection with payment for out-patient hospital services provided to two claimants involved in separate automobile accidents. In each appeal, the trial court entered a modified judgment against State Farm, finding that the DRP committed prejudicial error. The court determined that the trial court properly exercised the authority granted to it under the APDRA, adhered to the statutory grounds in vacating the DRPs' awards, and provided rational explanations of how the respective DRPs committed prejudicial error within the meaning of N.J.S.A. 2A:23A-13(c)(5). Because there was no principled reason for the exercise of the court's supervisory jurisdiction, or any unusual circumstances where public policy required the court's intervention, the court adhered to the strictures of N.J.S.A.2A:23A-18(b), barring further appeals or reviews of trial court judgments, and dismissed the appeals.

SUSAN LUCAS VS. 1 ON 1 TITLE AGENCY, INC., ET AL. SUSAN LUCAS VS. NEW JERSEY DEPARTMENT OF TRANSPORTATION, ET AL. (L-3144-13 AND L-0701-14, OCEAN COUNTY AND STATEWIDE) (A-2217-16T2)

SUSAN LUCAS VS. 1 ON 1 TITLE AGENCY, INC., ET AL. SUSAN LUCAS VS. NEW JERSEY DEPARTMENT OF TRANSPORTATION, ET AL. (L-3144-13 AND L-0701-14, OCEAN COUNTY AND STATEWIDE) (A-2217-16T2)

Appellant is a law firm who successfully represented plaintiff in the prosecution of a legal malpractice action. Appellant sought counsel fees from plaintiff that exceeded the amount of consequential damages proximately caused by the attorney/tortfeasor. Saffer v. Willoughby, 143 N.J. 256, 272 (1996). When plaintiff and appellant were unable to agree, the trial judge who presided over the legal malpractice action sua sponte decided to adjudicate the fee dispute over appellant's objection. This court reverses and holds the trial judge did not have subject matter jurisdiction to adjudicate this counsel fee dispute. Appellant was not a party in the case, had not filed a collection action against plaintiff, nor sought relief under N.J.S.A. 2A:13-5, commonly known as the Attorney's Lien Act.

NOEMI ESCOBAR VS. DAVID A. MAZIE, ET AL. (L-8329-17, ESSEX COUNTY AND STATEWIDE) (A-2509-18T1)

NOEMI ESCOBAR VS. DAVID A. MAZIE, ET AL. (L-8329-17, ESSEX COUNTY AND STATEWIDE) (A-2509-18T1)

The court reverses an order entered under RPC 3.7 barring a lawyer and every lawyer in his firm, save one, from representing themselves at deposition and trial in defense of a malpractice action brought against them by a former client. The court follows established federal authority in this circuit holding RPC 3.7 is a rule addressed only to a lawyer acting as an advocate at trial. Thus there is no ethical prohibition against a lawyer acting as an advocate in a deposition in a case in which the lawyer is likely to be a necessary witness at trial.

The court further holds that RPC 3.7 does not apply to a lawyer who is a party in the case. As lawyers have the same rights as other individuals appearing in our courts, they may appear in their own behalf at trial even if likely to be a necessary witness. Law firms, likewise, are to be treated as other entities, and thus must appear through counsel to the same extent. RPC 3.7 is fully applicable to lawyers appearing on the firm's behalf, even if the lawyer is employed by the firm. Imputed disqualification is limited as set forth in RPC 3.7.

J.H. and A.R. v. R & M Tagliareni, LLC (081128)(Hudson County and Statewide) (A-6-18;

J.H. and A.R. v. R & M Tagliareni, LLC (081128)(Hudson County and Statewide) (A-6-18; 081128)

The Court is unpersuaded that N.J.A.C. 5:10-14.3(d) imposes any regulatory duty on landlords to cover in-unit radiators with insulating material or a cover. The regulatory scheme provides no evidence of an express or implied intent to include radiators as part of the “heating system” required to be insulated. Having concluded that no such regulatory duty has been imposed, and because the tenants in this case maintained exclusive control over the heat emanating from the radiator, the Court declines to impose on landlords a new common law duty to cover all in-unit radiators.

US Masters Residential Property (USA) Fund v. New Jersey Department of Environmental Protection (081137)(Statewide) (A-78-17; 080562)

US Masters Residential Property (USA) Fund v. New Jersey Department of Environmental Protection (081137)(Statewide) (A-78-17; 080562)

Flaws in the substantive reasoning of the arbitration decision as well as procedural fairness considerations undermine confidence in the outcome of this arbitration enough to persuade the Court, in the interest of fairness, to require that a new arbitration be conducted.

ADP, LLC VS. ERIK KUSINS ADP, LLC VS. RYAN HOPPER ADP, LLC VS. ANTHONY M. KARAMITAS ADP, LLC VS. NICK LENOBLE ADP, LLC VS. MICHAEL DEMARCO ADP, LLC VS. DANIEL HOBAICA (C-000264, C-000023-16, C-000143-16, C-000117-16, C-000120-16, AND C-000118-16, ESSEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-4664-16T1/A-0692-17T3/A-0693-17T3/A-2990-17T4/A-4407-17T4/A-4527-17T4)

ADP, LLC VS. ERIK KUSINS ADP, LLC VS. RYAN HOPPER ADP, LLC VS. ANTHONY M. KARAMITAS ADP, LLC VS. NICK LENOBLE ADP, LLC VS. MICHAEL DEMARCO ADP, LLC VS. DANIEL HOBAICA (C-000264, C-000023-16, C-000143-16, C-000117-16, C-000120-16, AND C-000118-16, ESSEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-4664-16T1/A-0692-17T3/A-0693-17T3/A-2990-17T4/A-4407-17T4/A-4527-17T4)

In these consolidated appeals, the court considers the enforceability of the restrictive covenant agreements (RCAs) executed by the six defendants during their employment with plaintiff ADP, LLC. Each defendant was a top-performing sales representative. To award and incentivize their success, ADP invited defendants to participate in a stock award incentive program conditioned on their acceptance and execution of an RCA. The RCA included non-solicitation and non-compete provisions that restricted an employee from soliciting ADP's clients and competing with ADP upon leaving the company. The defendants left ADP at varying times and each accepted employment with the same direct competitor.

The court concluded that ADP demonstrated a legitimate and protectable interest in its customer relationships sufficient to justify enforcing the RCAs. However, the court also found the RCAs were overly broad and imposed an undue hardship on defendants. Therefore, the court blue-penciled the non-solicitation and non-compete provisions.

The court held that ADP may only prohibit its employees, upon separation from the company, from soliciting any of ADP's actual clients with whom the former employee was directly involved or who the employee knew was ADP's client.

As to the solicitation of prospective clients, the court found it unreasonable and onerous to restrict defendants from soliciting clients unknown to them while at ADP. Therefore, when working for a competitor, a former employee is only prohibited from soliciting a prospective ADP client if the employee gained knowledge of the potential client while at ADP and directly, or indirectly, solicits that client after leaving.

In considering the non-compete provision, the court determined it was reasonable for ADP to restrict its former employees, for a reasonable time, from providing services to a competing business in the same geographical territory in which the employee operated while at ADP.

The court reverses the summary judgment orders in favor of each defendant. Because each defendant breached the RCAs to some extent, the court remands the cases to the trial court to determine the appropriate remedy for the breach and to consider ADP's applications for counsel fees.

CENTRAL 25, LLC VS. ZONING BOARD OF THE CITY OF UNION CITY (L-1246-16, HUDSON COUNTY AND STATEWIDE) (A-0263-17T1)

CENTRAL 25, LLC VS. ZONING BOARD OF THE CITY OF UNION CITY (L-1246-16, HUDSON COUNTY AND STATEWIDE) (A-0263-17T1)

The Union City Zoning Board of Adjustment denied plaintiff's application for preliminary and final site plan approval, which required a number of bulk variances and a use variance. In an action in lieu of prerogative writs, the Law Division rejected plaintiff's claim that the two members of the Board should have recused themselves due to a conflict of interest. Applying the Supreme Court's recent decision in Piscitelli v. City of Garfield Zoning Bd. of Adjustment, 237 N.J. 333 (2019), this court reverses and remands the matter for the Law Division to conduct an evidentiary hearing to determine whether the two Board members should have recused themselves.

RICHARD MARCONI VS. UNITED AIRLINES (DIVISION OF WORKERS' COMPENSATION) (A-0110-18T4)

RICHARD MARCONI VS. UNITED AIRLINES (DIVISION OF WORKERS' COMPENSATION) (A-0110-18T4)

Petitioner, a New Jersey resident, sought benefits under the Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to -128, alleging injuries both as the result of a specific incident, and occupational injuries "while performing repetitive duties" as an aircraft technician while employed by United Airlines at the airport in Philadelphia. The judge of compensation dismissed both petitions for lack of jurisdiction.

Relying on dicta in Bunk v. Port Authority of New York & New Jersey, 144 N.J. 176, 180-81 (1996), petitioner claimed residency alone was sufficient to confer jurisdiction. Alternatively, he argued that United's business was "localized" in New Jersey, and combined with his residency, New Jersey should exercise jurisdiction over his petitions.

The court affirmed the dismissal for lack of jurisdiction, concluding the dicta in Bunk was not controlling, and residency alone is insufficient to confer jurisdiction. The court also concluded that although United maintained a "localized" presence in New Jersey, petitioner lacked any employment relationship to that presence.

LILLIAN COLLAS VS. RARITAN RIVER GARAGE, INC. (DIVISION OF WORKERS' COMPENSATION) (A-3103-17T4)

LILLIAN COLLAS VS. RARITAN RIVER GARAGE, INC. (DIVISION OF WORKERS' COMPENSATION) (A-3103-17T4)

After awarding dependent benefits under N.J.S.A. 34:15-13 to the surviving spouse of a worker who succumbed to an occupational disease, the judge of compensation awarded counsel fees based on the spouse's expected lifetime – in accordance with a 1995 amendment to N.J.S.A. 34:15-13(j) which provided that compensation shall be paid to a surviving spouse "during the entire period of survivorship" – as determined from the table of mortality and life expectancy printed as Appendix I to the New Jersey Rules of Court.

The court rejected the employer's argument on appeal that the proper calculation should have been based on the long-standing basis for counsel fee awards: the 450-week period of payments provided in N.J.S.A. 34:15-12(b) and portions of N.J.S.A. 34:15-13. N.J.S.A. 34:15-64 authorizes a judge of compensation to allow a prevailing party "a reasonable attorney fee, not exceeding [twenty percent] of the judgment." Although the court did not hold the use of the 450-week method traditionally used to calculate counsel fees was improper, it concluded the use of the table to calculate counsel fees was reasonable because it is designed to actuarially calculate the amount of time over which a surviving spouse can expect to receive benefits; in other words, it is based on the judgment amount calculated using the spouse's projected lifespan.

ALCATEL-LUCENT USA INC. VS. TOWNSHIP OF BERKELEY HEIGHTS (TAX COURT OF NEW JERSEY) (A-0743-16T1)

ALCATEL-LUCENT USA INC. VS. TOWNSHIP OF BERKELEY HEIGHTS (TAX COURT OF NEW JERSEY) (A-0743-16T1)

Alcatel-Lucent USA Inc. (Alcatel), is the owner of real property in the Township of Berkeley Heights on which is located its North American headquarters.1 There are approximately 1.5 million square feet of improvements on the 153.4 acre Berkeley Heights property – of which Alcatel contends 53 acres are woodlands.

N.J.S.A. 54:4-34 – commonly referred to as Chapter 91 (you have to read the decision to find out why) – requires every real property owner to provide "a full and true account of his [or her] name and real property and the income therefrom, in the case of income-producing property" to the municipal tax assessor upon the assessor's written request. The statute also precludes the owner from appealing the assessor's valuation and assessment if the owner fails or refuses to respond to the Chapter 91 request.

After Alcatel failed to respond to the tax assessor's request for information pertaining to its Berkeley Heights property, LTI filed a farmland assessment application for the woodland portion of the property. The assessor denied the application concluding agriculture was not the dominant use of the property; Alcatel filed a complaint with the Tax Court challenging the denial. The Tax Court dismissed the complaint holding it was precluded under Chapter 91 because Alcatel failed to respond to the assessor's Chapter 91 request.

The court rejected Alcatel's arguments that the Tax Court erred in: extending the application of the Chapter 91 preclusion penalty to its farmland assessment appeal; applying the Chapter 91 preclusion penalty to the woodland property because it is not income producing; and formulating a new rule that misinterprets our prior holding and undermines the legislative purpose of Chapter 91 and the Act. It also argued that technical deficiencies in the Township's Chapter 91 request bar preclusion of its claim.

The property was conveyed by Lucent Technologies, Inc. (Lucent) to LTI NJ Finance LLC (LTI), which simultaneously entered into a twenty-year agreement with Lucent, the sole member of LTI, pursuant to which Lucent was considered the "beneficial owner." Lucent merged with Alcatel, a French company, in 2006, to form Alcatel-Lucent USA Inc. The agreement between LTI and Lucent was terminated in 2013 and LTI was merged into Alcatel. The court was informed by Alcatel's merits brief that it is now known as "Nokia".

The court perceived no reason why Chapter 91's preclusion should not apply to Alcatel's farmland assessment complaint and affirmed Judge Joshua D.Novin's dismissal. The court recognized that the comprehensive statutory scheme requires tax assessors to assess every property at its full and fair value each year. Inasmuch as the Chapter 91 data is essential to the valuation of a split-use property, and, in turn, to the fulfillment of the assessor's statutory duties for the entire municipality, the court agreed with Judge Novin that the statute's preclusion provision should be applied to owners who fail to respond to the assessor's request.

ANASIA MAISON VS. NJ TRANSIT CORP., ET AL. (L-3535-14, ESSEX COUNTY AND STATEWIDE) (A-3737-17T2)

ANASIA MAISON VS. NJ TRANSIT CORP., ET AL. (L-3535-14, ESSEX COUNTY AND STATEWIDE) (A-3737-17T2)

A jury awarded plaintiff $1.8 million in damages against New Jersey Transit and its bus driver for injuries she sustained when an unidentified bus passenger struck plaintiff in the head with a thrown glass bottle. We affirm the trial court's determination to hold defendants to the common carrier standard of negligence but conclude the trial court misinterpreted applicable statutes when it denied defendants' request to include the bottle thrower on the verdict sheet.

We hold that joint tortfeasors are not required to apportion liability in cases involving a public entity. Instead, a jury should be permitted to apportion liability when a public employee or entity is determined to be a tortfeasor in a cause of action with one or more other tortfeasors.

We therefore affirm the liability verdict and award of damages but vacate the final judgment and remand for another jury to address the issue of allocation of fault between the bottle thrower and defendants.

IN THE MATTER OF CHANGES IN THE STATE CLASSIFICATION PLAN, COMMUNICATIONS OPERATOR, DEPARTMENT OF CORRECTIONS (NEW JERSEY CIVIL SERVICE COMMISSION) (A-5150-16T1)

IN THE MATTER OF CHANGES IN THE STATE CLASSIFICATION PLAN, COMMUNICATIONS OPERATOR, DEPARTMENT OF CORRECTIONS (NEW JERSEY CIVIL SERVICE COMMISSION) (A-5150-16T1)

The court held that the Chairperson of the Civil Service Commission was authorized to approve the creation of a new job title and did not act arbitrarily in approving the title at issue in this case.

CHARLES L. BOVE VS. AKPHARMA INC., ET AL. (L-0982-15, ATLANTIC COUNTY AND STATEWIDE) (A-2342-17T3)

CHARLES L. BOVE VS. AKPHARMA INC., ET AL. (L-0982-15, ATLANTIC COUNTY AND STATEWIDE) (A-2342-17T3)

In this appeal, the court considered whether an employee could seek damages from a former employer in a civil suit or was limited to recovery under the Workers Compensation Act (WCA) for injuries allegedly sustained from use of a nasal spray product developed by the employer. The court also examined whether frivolous litigation sanctions could be imposed, absent a finding the employee's attorneys acted in bad faith, particularly when the prevailing party's "safe harbor" letter failed to alert the employee's attorneys about the immunity.bar under the WCA and the prevailing party's initial motion for summary judgment was denied on all but one cause of action. The court affirmed the grant of summary judgment in the employer's favor, due to the employee's inability to demonstrate his employer had committed an "intentional wrong" under the two-prong test outlined in Millison v. E.I. du Pont de Nemours & Co.,101 N.J. 161, 178-79 (1985) and reversed the frivolous litigation sanction

ROBERT CAMERON, ETC. VS. SOUTH JERSEY PUBS, INC., D/B/A TGI FRIDAY'S, INC. (L-2106-14, BURLINGTON COUNTY AND STATEWIDE) (A-5177-17T2)

ROBERT CAMERON, ETC. VS. SOUTH JERSEY PUBS, INC., D/B/A TGI FRIDAY'S, INC. (L-2106-14, BURLINGTON COUNTY AND STATEWIDE) (A-5177-17T2)

this appeal, plaintiff's claims were similar to those considered by the New Jersey Supreme Court in Dugan v. TGI Fridays, Inc., 231 N.J. 24 (2017), as they related to defendant's sale of beverages from menus that did not include prices for the items sold. The court's majority determined that the Law Division improperly denied plaintiff's motion for class certification under Rule 4:32-1(b)(2). The majority concluded that the concerns raised by the Dugan Court about class certification under Rule 4:32-1(b)(3) of claims for damages under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -210, and the Truth in Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18, did not apply to plaintiff's class action for injunctive relief under (b)(2) in this case.

According to the majority neither the Dugan's Court's concern about whether plaintiff could make a showing that members of the putative class sustained an ascertainable loss under the CFA, nor its trepidation that certifying a (b)(3) class exposed the Dugan defendant to a disproportional amount of civil penalties under the TCCWNA were considerations applicable to plaintiff's motion in this case. Here, the majority held that in determining whether cohesiveness existed among class members, the trial court should have considered whether the remedy sought would be applicable to all members or to none of them.

The dissenting opinion concludes that the trial court correctly denied the motion for class certification under Rule 4:32-1(b)(2). According to the dissent, certification of the class for the CFA claims was not warranted because plaintiff would be required to establish that all members of the class sustained a bona fide ascertainable loss, which is an essential element of a claim under the CFA. Such claims are not cohesive since they depend on the individual's experience in purchasing beverages at defendant's restaurants. The claims under the TCCWNA also lack cohesion because relief could only be awarded to members of the class are "aggrieved consumers," and such claims also are dependent upon the class members' personal experiences.

FRANK HOLTHAM, JR. VS. KATHERINE LUCAS (FM-02-1695-14, BERGEN COUNTY AND STATEWIDE) (A-3073-17T1)

FRANK HOLTHAM, JR. VS. KATHERINE LUCAS (FM-02-1695-14, BERGEN COUNTY AND STATEWIDE) (A-3073-17T1)

In this post-judgment matrimonial case, the trial court imposed a penalty on plaintiff, in accord with his matrimonial settlement agreement (MSA), for violating one of the MSA's terms. On appeal from the award, plaintiff invoked the contract law principle that bars, as an unenforceable penalty, liquidated damages that unreasonably exceed normally compensable contract damages. The court concludes that the contract rule against penalties does not apply with equal force to MSAs. The court emphasizes that family judges retain the authority to modify an MSA's penalty provision to assure fairness and equity. Since no modification was warranted under the facts of the case, the court affirms the penalty award.

F.K. VS. INTEGRITY HOUSE, INC., ET AL. (L-2239-16, ESSEX COUNTY AND STATEWIDE) (A-1862-18T1)

F.K. VS. INTEGRITY HOUSE, INC., ET AL. (L-2239-16, ESSEX COUNTY AND STATEWIDE) (A-1862-18T1)

Plaintiff F.K. appeals the trial court's December 11, 2018 order granting summary judgment to defendant Integrity House and dismissing her complaint with prejudice. The trial court determined that defendant was entitled to immunity from plaintiff's negligence action under New Jersey's Charitable Immunity Act ("the Act"), N.J.S.A. 2A:53A-7 to -11. On appeal, plaintiff contends that the amount of private contributions received by defendant, roughly $250,000 or 1.26% of annual revenue, is too insignificant to entitle defendant to charitable immunity.

"Charitable immunity is an affirmative defense, as to which, like all affirmative defenses, defendants bear the burden of persuasion." Abdallah v. Occupational Ctr. of Hudson Cty., Inc., 351 N.J. Super. 280, 288 (App. Div. 2002). The court concludes that defendant did not present sufficient evidence to support its entitlement to the affirmative defense of charitable immunity. The summary judgment record does not allow for a conclusive determination as to the source and use of Integrity House's funding. Therefore, the court is unable to determine whether Integrity House receives substantial funding from private contributions or relieves the government from a burden it would otherwise have to perform, as is required to be entitled to charitable immunity.

In addition, although a determination of the specific percentage of funding Integrity House receives from private contributions is not necessary for the court's analysis, the court notes that no published case has granted charitable immunity to a non-religious, non-educational entity with such a small portion of funding from private contributions.

Accordingly, the court reverses the trial court's grant of summary judgment.

DAVID F. CALABOTTA VS. PHIBRO ANIMAL HEALTH CORPORATION, ET AL. (L-1979-17, BERGEN COUNTY AND STATEWIDE) (A-1576-17T3)

DAVID F. CALABOTTA VS. PHIBRO ANIMAL HEALTH CORPORATION, ET AL. (L-1979-17, BERGEN COUNTY AND STATEWIDE) (A-1576-17T3)

This lawsuit is brought by an Illinois resident against his New Jersey-based former employer. Plaintiff alleges the company wrongfully denied him a promotion to a position in New Jersey and thereafter wrongfully terminated him from his job with its subsidiary in Illinois.

Plaintiff claims the company engaged in "associational" discrimination against him, in violation of the New Jersey Law Against Discrimination ("NJLAD"), based on the fact that his wife was then terminally ill with cancer. The company maintains it treated plaintiff fairly, and that it justifiably discharged him for engaging in inappropriate conduct at a trade show.

The trial court concluded that Illinois law, rather than the NJLAD, must apply to plaintiff's claims of discrimination because he lived in Illinois and worked for defendants' subsidiary in Illinois. Given that Illinois law has yet to recognize a cause of action for associational discrimination, the court granted defendants' motion to dismiss plaintiff's claims with prejudice.

On appeal in this case of first impression, this court holds that the NJLAD, notwithstanding the solitary reference to "inhabitants" in its preamble, can extend in appropriate circumstances to plaintiffs who reside or work outside of this state. However, whether the NJLAD applies to a particular nonresident plaintiff's claims turns upon a weighing of the multiple choice-of-law factors set forth in the Restatement (Second) of Conflicts of Laws (Am. Law Inst. 1971), as adopted and construed by the New Jersey Supreme Court.

The court concludes that New Jersey law (specifically the NJLAD's ban against associational discrimination) applies to defendants' alleged failure to give plaintiff fair consideration for a promotion to a position in New Jersey. The Second Restatement factors strongly weigh in favor of applying New Jersey law, not Illinois law, to this failure-to-promote claim. This court therefore reverses the trial court’s dismissal of that discrete claim and reinstate it.

As for plaintiff's wrongful discharge claim, this court vacates its dismissal and remands the choice-of-law issue pertaining to that claim to the trial court, to enable the further development of critical facts and analysis bearing on the Second Restatement factors.

L.R. v. Camden City Public School District (080333)(Camden, Morris, and Somerset Counties and Statewide) (A-61/62-17; 080333)

L.R. v. Camden City Public School District (080333)(Camden, Morris, and Somerset Counties and Statewide) (A-61/62-17; 080333)

The six members of the Court who participated in this matter agree upon the non-exclusive factors identified in the concurring opinion that govern a court’s determination when a requestor, not otherwise authorized by statute or regulation to have access to a given student record, seeks a court order mandating disclosure of that record pursuant to N.J.A.C. 6A:32-7.5(e)(15). An equally divided Court affirms the Appellate Division’s determination that a "student record" under N.J.A.C. 6A:32-2.1 retains its protected status under New Jersey law notwithstanding the school district’s redaction from that record of "personally identifiable information," as required by FERPA and its implementing regulations.

Sergeant First Class Frank Chiofalo v. State of New Jersey (081607)(Mercer County and Statewide) (A-30-18; 081607)

Sergeant First Class Frank Chiofalo v. State of New Jersey (081607)(Mercer County and Statewide) (A-30-18; 081607)

The Court does not agree that the trial court erred in refusing to grant defendants summary judgment on plaintiff’s CEPA claim related to the alleged refusal to destroy documents, but affirms as to the fraudulent timekeeping allegations.

In the Matter of Joseph Peter Barrett, an Attorney at Law (081035)(Statewide) (D-126-17

In the Matter of Joseph Peter Barrett, an Attorney at Law (081035)(Statewide) (D-126-17; 081035)

Because the Utah court limited the presentation of evidence of a business dispute between respondent and the law firm, and because evidence that may exist in Utah cannot be compelled by respondent here, the Court cannot conclude that the OAE has proven by clear and convincing evidence that respondent knowingly misappropriated law firm funds under circumstances justifying greater discipline than that imposed in Utah.

THE MATTER OF CHANGES IN THE STATE CLASSIFICATION PLAN, COMMUNICATIONS OPERATOR, DEPARTMENT OF CORRECTIONS (NEW JERSEY CIVIL SERVICE COMMISSION) (A-5150-16T1)

N THE MATTER OF CHANGES IN THE STATE CLASSIFICATION PLAN, COMMUNICATIONS OPERATOR, DEPARTMENT OF CORRECTIONS (NEW JERSEY CIVIL SERVICE COMMISSION) (A-5150-16T1)

The court held that the Chairperson of the Civil Service Commission was authorized to approve the creation of a new job title and did not act arbitrarily in approving the title at issue in this case.

CHARLES L. BOVE VS. AKPHARMA INC., ET AL. (L-0982-15, ATLANTIC COUNTY AND STATEWIDE) (A-2342-17T3)

CHARLES L. BOVE VS. AKPHARMA INC., ET AL. (L-0982-15, ATLANTIC COUNTY AND STATEWIDE) (A-2342-17T3)

In this appeal, the court considered whether an employee could seek damages from a former employer in a civil suit or was limited to recovery under the Workers Compensation Act (WCA) for injuries allegedly sustained from use of a nasal spray product developed by the employer. The court also examined whether frivolous litigation sanctions could be imposed, absent a finding the employee's attorneys acted in bad faith, particularly when the prevailing party's "safe harbor" letter failed to alert the employee's attorneys about the immunity.bar under the WCA and the prevailing party's initial motion for summary judgment was denied on all but one cause of action. The court affirmed the grant of summary judgment in the employer's favor, due to the employee's inability to demonstrate his employer had committed an "intentional wrong" under the two-prong test outlined in Millison v. E.I. du Pont de Nemours & Co.,101 N.J. 161, 178-79 (1985) and reversed the frivolous litigation sanction