MICHAEL BANDLER VS. LANDRY'S INC., GOLDEN NUGGET ATLANTIC CITY, ET AL. (L-0026-16, ATLANTIC COUNTY AND STATEWIDE) (A-5064-17T3)

MICHAEL BANDLER VS. LANDRY'S INC., GOLDEN NUGGET ATLANTIC CITY, ET AL. (L-0026-16, ATLANTIC COUNTY AND STATEWIDE) (A-5064-17T3)

The sole issue presented in plaintiff's appeal from the grant of summary judgment to defendants is whether the Casino Control Act, which grants the Division of Gaming Enforcement authority to regulate gaming-related advertising, N.J.S.A. 5:12-70(a)(16), preempts plaintiff's Consumer Fraud Act (CFA) and common law claims alleging a casino hotel falsely advertised a poker tournament. Based on its review of the two statutes, and relevant case law, including the Supreme Court's test for determining preemption of the CFA in Lemelledo v. Beneficial Management Corp.,

EDISON BOARD OF EDUCATION VS. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EDISON, ET AL. (L-3666-19,

EDISON BOARD OF EDUCATION VS. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EDISON, ET AL. (L-3666-19, MIDDLESEX COUNTY AND STATEWIDE) (A-0320-19T1)

A municipal board of education (BOE) challenged the grant of a use and bulk variances by a local zoning board of adjustment (ZBA) to permit construction of multi-family residential structures. The BOE alleged it had standing to bring the suit because the additional families would further tax an already overcrowded school district. In addition, the BOE argued that the ZBA violated the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, because it failed to include on its meeting agenda any item reflecting its intention to adopt a memorializing resolution. The trial court rejected these arguments, and this court affirmed.

The court concluded that the BOE lacked standing, because it was not an "interested party," N.J.S.A. 40:55D-4, based on a generalized claim that more families might overburden the school district. The court also concluded that the ZBA did not violate the OPMA, because it included the particular meeting as a "special meeting" on its annual published notice of meetings. See Witt v. Gloucester Cty. Bd. of Chosen Freeholders, 94 N.J. 422, 433 (1983) (holding that "[p]ublication of an agenda . . . is required only in those instances where no annual notice has been provided in accordance with N.J.S.A. 10:4-18

Carol Crispino v. Township of Sparta (083171) (Sussex County & Statewide) (A-16-19;

Carol Crispino v. Township of Sparta (083171) (Sussex County & Statewide) (A-16-19; 083171)

The expert report relied on by the Township did not apply any reliable methodology to assure that the assessment allocating the costs among the properties was “in proportion to and not in excess of the benefits conferred,” as required by N.J.S.A. 58:4-12(d)(1) and other statutes. The Court is constrained to invalidate Sparta Township Resolution 6-1, which imposes a special assessment on plaintiffs’ properties to recoup the costs of the dam restoration project. The Township must pass a resolution allocating costs based on a valid methodology in accordance with the applicable statutes and relevant case law.

Bank Leumi USA v. Edward J. Kloss (083372)(Statewide) (A-32-19

Bank Leumi USA v. Edward J. Kloss (083372)(Statewide) (A-32-19; 083372)

The Court answers the certified question in the negative. A party who files a successful motion to dismiss for failure to state a claim is not precluded by the entire controversy doctrine from asserting claims in a later suit that arise from the same transactional facts.

Christian Mission John 316 v. Passaic City (083487) (Tax Court & Statewide) (A-33-19

Christian Mission John 316 v. Passaic City (083487) (Tax Court & Statewide) (A-33-19; 083487)

It was error to grant summary judgment because, construing all inferences in Christian Mission’s favor, there is evidence that the property might have been used in a manner that could satisfy N.J.S.A. 54:4-3.6’s actual use requirement -- storage of religious items and/or other church-related activities at the property before construction began, during construction, and as of the valuation date in 2012.

Gloria Colon v. Strategic Delivery Solutions, LLC (083154) (Union County & Statewide) (A-7-19;

Gloria Colon v. Strategic Delivery Solutions, LLC (083154) (Union County & Statewide) (A-7-19; 083154)

The NJAA may apply to arbitration agreements even if parties to the agreements are exempt under section 1 of the FAA. Therefore, the parties in both Colon and Arafa are not exempt from arbitration and their arbitration agreements are enforceable. In Arafa, the arbitration agreements are enforceable under the NJAA. In Colon, the arbitration agreements are enforceable under either the FAA or the NJAA, which will be determined by the trial court upon remand when it resolves whether the employees in that case were transportation workers engaged in interstate commerce.

Essam Arafa v. Health Express Corporation (083174) (Middlesex County & Statewide) (A-6-19

Essam Arafa v. Health Express Corporation (083174) (Middlesex County & Statewide) (A-6-19; 083174)

The NJAA may apply to arbitration agreements even if parties to the agreements are exempt under section 1 of the FAA. Therefore, the parties in both Colon and Arafa are not exempt from arbitration and their arbitration agreements are enforceable. In Arafa, the arbitration agreements are enforceable under the NJAA. In Colon, the arbitration agreements are enforceable under either the FAA or the NJAA, which will be determined by the trial court upon remand when it resolves whether the employees in that case were transportation workers engaged in interstate commerce.

Bryheim Jamar Baskin v. Rafael Martinez (A-70-18;

Bryheim Jamar Baskin v. Rafael Martinez (081982) (Camden County & Statewide) (A-70-18; 081982)

For summary judgment purposes, the Court must accept as true the sworn deposition testimony of Baskin and the independent eyewitness, who both stated that Baskin’s open and empty hands were above his head, in an act of surrender, when Detective Martinez fired the shot. Under that scenario, a police officer would not have had an objectively reasonable basis to use deadly force. The law prohibiting the use of deadly force against a non-threatening and surrendering suspect was clearly established, as evidenced by cases in jurisdictions that have addressed the issue. Thus, Detective Martinez was not entitled to qualified immunity on summary judgment.

West Pleasant – CPGT, Inc. v. U.S. Home Corporation, d/b/a Lennar Homes (A-1-19; 082981)

West Pleasant – CPGT, Inc. v. U.S. Home Corporation, d/b/a Lennar Homes (082981) (Ocean County & Statewide) (A-1-19; 082981)

The use of fair market value credit by this debtor to obtain a money judgment against a creditor -- in the absence of a deficiency claim threatened or pursued or any objection being raised at the time of the sheriff’s sales -- is inconsistent with sound foreclosure processes and, moreover, inequitable in the circumstances presented.)

MARVIN ESCOBAR-BARRERA VS. PAUL KISSIN (L-0783-17. UNION COUNTY AND STATEWIDE) (A-5132-18T3)

MARVIN ESCOBAR-BARRERA VS. PAUL KISSIN (L-0783-17. UNION COUNTY AND STATEWIDE) (A-5132-18T3)

In this appeal, the court considered the trial judge's handling of a plaintiff's mid-trial request for a twenty-four-hour adjournment or a mistrial when plaintiff's medical witness unexpectedly failed to appear to testify. The judge denied plaintiff's request for any form of relief and granted defendant's motion for involuntary dismissal pursuant to Rule 4:37-2(b), resulting in the dismissal of plaintiff's personal injury complaint with prejudice

The court holds that the judge's denial of an adjournment or a mistrial under the circumstances constituted a mistaken exercise of discretion. Because plaintiff's claim was completely dependent upon the non-appearing witness's testimony and plaintiff's inability to produce the witness was not the result of inexcusable neglect or willful failure, the court determines that the judge should have afforded some measure of relief to prevent the irretrievable loss of the claim and infringement of plaintiff's substantial rights. Accordingly, the court reverses the dismissal order and remands for a new trial.

Investors Bank v. Javier Torres (082239) (Bergen County & Statewide) (A-55-18

Investors Bank v. Javier Torres (082239) (Bergen County & Statewide) (A-55-18; 082239)

Relying on two statutes addressing assignments, N.J.S.A. 2A:25-1 and N.J.S.A. 46:9-9, as well as common-law assignment principles, the Court holds that Investors had the right as an assignee of the Mortgage and transferee of the Note to enforce the Note. The Court construes N.J.S.A. 12A:3-309 to address the rights of CitiMortgage as the possessor of a note or other instrument at the time that the instrument is lost, but not to supplant New Jersey assignment statutes and common law in the setting of this appeal or to preclude an assignee in Investors’ position from asserting its rights according to the Note’s terms. Read together, those three statutes clearly authorized the assignment and entitled Investors to enforce its assigned Mortgage and transferred Note. The Court does not rely on the equitable principle of unjust enrichment invoked by the Appellate Division

Gourmet Dining, LLC v. Union Township (083146)(Tax Court & Statewide) (A-8-19;

Gourmet Dining, LLC v. Union Township (083146)(Tax Court & Statewide) (A-8-19; 083146)

The arrangement by which Gourmet Dining operates Ursino is taxable as a lease or lease-like interest. The public-benefit-oriented exemption provisions in issue were not intended to exempt the for-profit operator of a high-end, regionally renowned restaurant situated on a college campus, when the overriding purpose of this commercial endeavor is focused on profitmaking. Gourmet Dining, as the exclusive operator and manager of this restaurant establishment, must bear its fair share of the local real property tax burden.

City of Asbury Park v. Star Insurance Company (083371) (Statewide) (A-20-19

City of Asbury Park v. Star Insurance Company (083371) (Statewide) (A-20-19; 083371)

The Court answers the certified question in the negative. Under equitable principles of New Jersey law, the made-whole doctrine does not apply to first-dollar risk, such as a self-insured retention or deductible, that is allocated to an insured under an insurance policy.