CHARLES J. PARKINSON VS. DIAMOND CHEMICAL COMPANY, INC., ET AL. (L-1341-18, UNION COUNTY AND STATEWIDE) (A-2639-20)

 

CHARLES J. PARKINSON VS. DIAMOND CHEMICAL COMPANY, INC., ET AL. (L-1341-18, UNION COUNTY AND STATEWIDE) (A-2639-20) On leave granted, the court holds that the tax filings of corporations and other businesses receive the same presumption of confidentiality as individual tax records. Hence, the heightened requirements for disclosure specified in Ullmann v. Hartford Fire Ins. Co., 87 N.J. Super. 409 (App. Div. 1965), apply to such business tax filings as well. As Ullmann instructs, a civil litigant can only obtain an opposing party's tax filings through discovery by demonstrating to the court: (1) the filings are relevant to the case; (2) there is a "compelling need for the documents because the information likely to be contained within them is "not otherwise readily obtainable" from other sources; and (3) disclosure would serve a "substantial purpose." Id. at 415-16.

WILMINGTON SAVINGS FUND SOCIETY, FSB VS. PATRICIA E. DAW, ET AL. (F-007259-16, OCEAN COUNTY AND STATEWIDE) (A-0829-19)

 WILMINGTON SAVINGS FUND SOCIETY, FSB VS. PATRICIA E. DAW, ET AL. (F-007259-16, OCEAN COUNTY AND STATEWIDE) (A-0829-19)

After appellants’ home was severely damaged by Superstorm Sandy, they defaulted on their mortgage loan. Their flood insurer paid out $150,000 in benefits for the damage.

Pursuant to the contract terms, the lender’s assignee held the insurance funds in escrow, while it decided whether repairs to the house would be "economically infeasible" or would lessen its security.

Over three years passed before the lender ultimately applied the insurance proceeds to the homeowners' outstanding debt. During that lengthy interval, over $40,000 in mortgage interest accrued.

The homeowners unsuccessfully argued to the Chancery judge they were entitled to a credit on the foreclosure judgment for that portion of the interest, due to the lender’s allegedly unfair conduct.

Consistent with principles of fairness and reasonableness set forth in the Restatement (Third) of Property (Mortgages) (1997), this court holds the lender in such situations owes the borrower an implied covenant of good faith and fair dealing in determining how to dispose of the property or flood insurance funds.

If the lender unreasonably delays making a decision about the proposed use of the insurance funds for repairs, the Chancery judge has the equitable power to abate the mortgage interest that accumulated in the meantime. Additionally, the lender must place the insurance funds in an interest-bearing, segregated account until the proper use of those funds is resolved.

Having announced these governing principles, the court remands this matter to Chancery Division to develop the record more fully and evaluate whether the mortgage company breached the implied covenant.

JWC FITNESS, LLC VS. PHILIP D. MURPHY, ETC. (L-0388-20, SUSSEX COUNTY AND STATEWIDE) (A-0639-20)

 JWC FITNESS, LLC VS. PHILIP D. MURPHY, ETC. (L-0388-20, SUSSEX COUNTY AND STATEWIDE) (A-0639-20)

In this latest appeal arising from executive orders (EOs) issued by the Governor of New Jersey in response to health-related emergencies caused by the spread of the COVID-19 coronavirus, plaintiff JWC Fitness, LLC, which until October 2020 operated a kickboxing business, claimed entitlement to compensation under the New Jersey Civil Defense and Disaster Control Act (Disaster Control Act), N.J.S.A. App. A:9-30 to -63, for the closure and limitations placed on its business under some EOs.

According to plaintiff, the EOs that temporarily limited and shut down the operations of health clubs, including gyms and fitness centers, effectively "commandeered and utilized" its property under N.J.S.A. App. A:9-34, such that the State must establish an "emergency compensation board" under N.J.S.A. App. A:9-51(c), in order to provide "payment of the reasonable value of such . . . privately owned property." N.J.S.A. App. A:9-34. Plaintiff also sought a declaratory judgment that the EOs effectuated a taking of its property without just compensation, in violation of the New Jersey Constitution, art. I, ¶ 20, and the United States Constitution, amends. V and XIV.

The court concluded that plaintiff's arguments were without merit as the statutory standard for compensation had not been implicated, and the EOs did not effectuate a taking of plaintiff's property within the meaning of the state and federal constitutions.

GREEN KNIGHT CAPITAL, LLC VS. GABRIEL CALDERON, ET AL. (F-005626-20, HUDSON COUNTY AND STATEWIDE) (A-1265-20)

GREEN KNIGHT CAPITAL, LLC VS. GABRIEL CALDERON, ET AL. (F-005626-20, HUDSON COUNTY AND STATEWIDE) (A-1265-20)

In this action to foreclose a tax sale certificate, plaintiff appeals from three Chancery Division orders. The first denied plaintiff's motion to bar redemption and impose a constructive trust. The second granted the respondent investor's motion to intervene and permit redemption. The third denied plaintiff's motion to set the time, place, and amount of redemption as moot.

The court held that when an investor has an interest in the property in foreclosure, is prepared to redeem the tax sale certificate, and files a motion to intervene in the foreclosure action before the entry of an order setting the last date for redemption, the investor is permitted to intervene and redeem the tax certificate. Accordingly, the court affirmed the three orders entered by the trial court.

MORGAN DENNEHY VS. EAST WINDSOR REGIONAL BOARD OF EDUCATION, ET AL. (L-1333-17, MERCER COUNTY AND STATEWIDE) (A-2497-19)

 MORGAN DENNEHY VS. EAST WINDSOR REGIONAL BOARD OF EDUCATION, ET AL. (L-1333-17, MERCER COUNTY AND STATEWIDE) (A-2497-19)

Plaintiff Morgan Dennehy appeals from a February 18, 2020 order denying her motion for reconsideration of a previous order granting summary judgment to defendants East Windsor Regional Board of Education, Hightstown High School, James W. Peto, Todd M. Peto, and Dezarae Fillmyer. Plaintiff was a student at Hightstown High School and a member of the field hockey team. On September 9, 2015, the field hockey team was waiting for its scheduled practice on Hightstown High School's turf field to begin and was conducting drills in the "D-zone," an area between the recently renovated turf field and the track. Some members of the team were participating in the drills while others watched. A twenty-foot-tall ball-stopper is located at each end of the turf field and separates the "D-zone" from the turf field. While the field hockey team was practicing drills in the "D-zone," the boys soccer team was practicing on the turf field and plaintiff observed several soccer balls vault the ball stopper. After the team concluded its drills, plaintiff asked defendant Coach Fillmyer if she could take a shot on goal. Defendant agreed because plaintiff rarely had the opportunity to shoot on goal. Plaintiff left the area directly behind the ball stopper and, after she finished shooting, she was struck in the back of the neck by an errant soccer ball that went over the ball stopper. Plaintiff was later taken to the hospital and was diagnosed with a concussion. Plaintiff filed suit alleging that defendants were negligent and negligent in hiring, retaining, training, and supervision of employees.

On appeal, plaintiff argues that the motion judge erroneously applied the heightened recklessness standard set forth in Crawn v. Campo, 136 N.J. 494 (1994). After reviewing the applicable case law, the court concluded that the motion judge erred in applying the heightened recklessness standard from Crawn. In this case, defendant Fillmyer was not a co-participant who directly injured plaintiff and, therefore, Crawn does not apply.

The court also determined that Rosania v. Carmona, 308 N.J. Super. 365 (App. Div. 1998) does not apply to this case. In Rosania, a martial arts instructor participated in a sparring match with a student and kicked the student in the head causing his retina to detach. The martial arts dojo had a written rule that prohibited targeting of the head. The Rosania panel determined that if the jury found the risks inherent in the karate match were materially increased by an instructor beyond those reasonably anticipated by the dojo rules, it should have been charged on the ordinary duty owed to business invitees rather than the heightened recklessness standard for competitive contact sports. The court declined to apply Rosania in this case for two reasons: first, defendant Fillmyer was not a co-participant; and second, the Rosania panel's decision was informed by cases decided by the New York Court of Appeals which contemplated a different heightened standard. The court concluded that because defendant in this case is a public employee, her duties, responsibilities, and immunities are clearly established in the New Jersey Tort Claims Act N.J.S.A. 59:1-1 to 12-3, and thus defendant is liable to the same extent as a private person for her negligence and the ordinary negligence standard should govern this case.

CITY OF NEWARK VS. NEWARK POLICE SUPERIOR OFFICER'S ASSOCIATION, ET AL. (PUBLIC EMPLOYMENT RELATIONS COMMISSION) (CONSOLIDATED) (A-0146-21

 CITY OF NEWARK VS. NEWARK POLICE SUPERIOR OFFICER'S ASSOCIATION, ET AL. (PUBLIC EMPLOYMENT RELATIONS COMMISSION) (CONSOLIDATED) (A-0146-21/A-0159-21)

The court holds that the Mayor of the City of Newark has the authority, as a managerial prerogative, to mandate that all City employees be fully vaccinated against COVID-19. Nine unions representing City employees filed unfair labor practice charges against the City with the Public Employment Relations Commission (PERC) and requested an injunction to prevent the implementation of the mandate before the City negotiated with the unions. A Director of PERC issued an order granting in part and denying in part the unions' request for preliminary injunctive relief.

On leave granted, the court affirms the portion of the PERC order that held that the Mayor has a managerial prerogative to issue the mandate but vacates the portion of PERC's order that imposed restraints on the City or required any negotiations concerning the implementation, timing, or enforcement of the City's vaccination mandate.

C.R. v. M.T. (083760) (Gloucester County & Statewide) (A-58-19;

 C.R. v. M.T. (083760) (Gloucester County & Statewide) (A-58-19; 083760)

The appropriate standard to determine whether sexual activity was consensual under SASPA is not the prostration of faculties standard, which focuses on the mental state of the defendant, but rather the standard articulated in State in Interest of M.T.S., 129 N.J. 422 (1992), which is applied from the perspective of the alleged victim. The M.T.S. standard requires a showing that sexual activity occurred without the alleged victim’s freely and affirmatively given permission to engage in that activity. The standard for consent for an alleged victim in a SASPA case should be no different than the standard for consent for an alleged victim in a criminal sexual assault case. The Court reverses and remands this matter to the trial court for assessment under the standard articulated in M.T.S.

New Jersey Division of Child Protection and Permanency v. J.R.-R. and G.R.-R (083807) (Cumberland County & Statewide) (A-56/57-19; 083807)

 New Jersey Division of Child Protection and Permanency v. J.R.-R. and G.R.-R (083807) (Cumberland County & Statewide) (A-56/57-19; 083807)

The Legislature placed on DCPP the burden of proving by a preponderance of the evidence that a parent abused or neglected a child, N.J.S.A. 9:6-8.46(b)(1), and the Judiciary has no commission to exercise equitable powers to alter the statutory burden of proof set forth by the Legislature. The Court disapproves of the Appellate Division cases that have imported the doctrine of conditional res ipsa loquitur from the common law into a comprehensive statutory scheme to relieve DCPP of its burden of proving that a particular parent abused or neglected a child. The Court remands for a new hearing.