Nancy L. Holm v. Daniel M. Purdy

 Informed by the Legislature’s expression of public policy in N.J.S.A. 34:15-36, the Court concurs with the Appellate Division that defendant had a duty to advise the LLC members, at the time of the workers’ compensation policy’s purchase or renewal, that an LLC member actively performing services on the LLC’s behalf is eligible for workers’ compensation coverage, but that the LLC must elect to purchase such coverage in order to obtain it. Consistent with N.J.S.A. 34:15-36, however, the Court holds that defendant may not be held liable for breach of that duty unless the damages alleged were caused by defendant’s willful, wanton or grossly negligent act of commission or omission. The Court disagrees with the trial court’s assessment of the evidence presented by plaintiff on the question of proximate cause.

AMERICAN ZURICH INSURANCE COMPANY, ETC. VS. MERIDIA DOWNTOWN URBAN RENEWAL BOUND BROOK,

 Plaintiff brought a subrogation claim against defendants to recoup insurance benefits it paid to its insured on account of damage caused by a fire at a construction site.  In an effort to obtain relevant information pertaining to the cause of the fire, the civil action parties served a subpoena duces tecum on the Somerset County Prosecutor's Office (SCPO), a non-party law enforcement agency, and moved to compel production of its criminal investigation file relating to the ongoing prosecution of the individual who was suspected of starting the fire.  The trial judge rejected the SCPO's claim that the criminal investigation materials were privileged and confidential, and ordered it to turn over to the civil action parties:  (1) videos and photographs depicting the events giving rise to the criminal prosecution, (2) the suspect's statement to police, and (3) witness statements, or alternatively, witness contact information. 

The court granted the SCPO's motion for leave to appeal and reversed the disclosure order.  Because the materials sought were subject to a qualified privilege, the court determined that the trial judge failed to properly balance the competing interests at stake.  The court held that the civil action parties' discovery interests were subordinate to the State's paramount interest in preserving the integrity of an ongoing criminal prosecution and the underlying evidential record.  The court acknowledged that the privilege was not absolute but pointed out that the materials were not essential to the resolution of the subrogation claim and the presence of significant monetary damages did not of itself outweigh the SCPO's interests in protecting and maintaining the confidentiality of its criminal investigation materials.  Further, the civil parties failed to meet their burden of demonstrating that at least some of the information could not be obtained from other sources. 

JPC MERGER SUB LLC VS. TRICON ENTERPRISES, INC., ET AL. (L-2885-21,

 In this contract payment dispute between a general contractor and its subcontractor, the court held as a matter of first impression that a "pay-if-paid" provision in a construction contract is enforceable as a matter of law.  The court adopted the construction industry's definition of "pay-if-paid" provisions as conditions precedent to payment that shift the risk of a project owner's nonpayment from the general contractor to the subcontractor, by virtue of which the subcontractor is paid by the general contractor only if the owner pays the general contractor for that subcontractor's work.  The court held that subject to the parties' implied duty to not frustrate conditions precedent to performance, such provisions are neither unfair, unconscionable, nor against public policy so long as the contract specifies a clear and unambiguous intent to shift the risk of nonpayment.

 
Given the court's holding regarding the enforceability of a "pay-if-paid" provision and determination that the subcontractor expressed a clear and unambiguous intent to be bound by such terms, the court concluded that a counterclaim relying on the "pay-if-paid" provision to bar payment to the subcontractor based on the owner's nonpayment for the subcontractor's work adequately suggested a cause of action for breach of contract to withstand dismissal under Rule 4:6-2(e) for failure to state a claim.  Consequently, the court affirmed the motion judge's order denying the subcontractor's motion to dismiss the counterclaim pursuant to Rule 4:6-2(e).  However, the court reversed the motion judge's order granting summary judgment dismissal of the subcontractor's claims for payment because there was a factual dispute as to whether the owner's nonpayment was precipitated by the general contractor's wrongful conduct.

SILVANA LANSIGAN DELVALLE, ET AL. VS. HENRY J. TRINO, ET AL. (L-5663-19,

 Our Supreme Court granted leave to defendants Henry Trino, Charlene Trino, Airel Trino, and Kevin Garcia to appeal the denial of their summary judgment motions to dismiss the complaint by plaintiffs Silvana Lansigan Delvalle, as administrator of Raniel Hernandez's estate and individually, and Ralph Hernandez.  These appeals were calendared back-to-back and consolidated to issue a single opinion. 

Plaintiffs' common law claims of negligence and intentional infliction of emotional distress, as well as the claim based on the principal of Portee v. Jaffee, 84 N.J. 88 (1980), arise from the accidental drowning of their son Raniel, while he was swimming, intoxicated, at a pool party hosted by the Trinos. 

 The trial court denied summary judgment to defendants on the ground there were genuine issues of material facts in dispute with respect to their negligence.  As to Garcia, the dispute involved his active role in Raniel's drowning.  Concerning the Trinos, the dispute involved the common law duty owed to an intoxicated Raniel and the implementation of reasonable pool safety protections to prevent his drowning.  The motion court did not address dismissal of plaintiffs' intentional infliction of emotional distress and Portee claims.

We reverse. Garcia should have been granted summary judgment because the undisputed record indicates he had no role in Raniel's decision to enter the pool, nor did he have a duty to rescue Raniel.  Furthermore, there is no indication Garcia failed to exercise good faith when he tried to save Raniel.  The Trinos should have been granted summary judgment because the Social Host Liability Act, N.J.S.A. 2A:15-5.5 to 5.8, does not govern plaintiff's drowning and, under our current state law, they owed Raniel no common law duty to prevent him from swimming while intoxicated.  As for the intentional infliction of emotional distress and Portee claims, they fail as a matter of law.  Defendants' conduct in not knowing or indicating how Raniel drowned did not constitute intentional infliction of emotional distress, and there is no viable Portee claim because plaintiffs did not witness the drowning.

SILVANA LANSIGAN DELVALLE, ET AL. VS. HENRY J. TRINO,

 Our Supreme Court granted leave to defendants Henry Trino, Charlene Trino, Airel Trino, and Kevin Garcia to appeal the denial of their summary judgment motions to dismiss the complaint by plaintiffs Silvana Lansigan Delvalle, as administrator of Raniel Hernandez's estate and individually, and Ralph Hernandez.  These appeals were calendared back-to-back and consolidated to issue a single opinion. 

Plaintiffs' common law claims of negligence and intentional infliction of emotional distress, as well as the claim based on the principal of Portee v. Jaffee, 84 N.J. 88 (1980), arise from the accidental drowning of their son Raniel, while he was swimming, intoxicated, at a pool party hosted by the Trinos. 

 The trial court denied summary judgment to defendants on the ground there were genuine issues of material facts in dispute with respect to their negligence.  As to Garcia, the dispute involved his active role in Raniel's drowning.  Concerning the Trinos, the dispute involved the common law duty owed to an intoxicated Raniel and the implementation of reasonable pool safety protections to prevent his drowning.  The motion court did not address dismissal of plaintiffs' intentional infliction of emotional distress and Portee claims.

We reverse. Garcia should have been granted summary judgment because the undisputed record indicates he had no role in Raniel's decision to enter the pool, nor did he have a duty to rescue Raniel.  Furthermore, there is no indication Garcia failed to exercise good faith when he tried to save Raniel.  The Trinos should have been granted summary judgment because the Social Host Liability Act, N.J.S.A. 2A:15-5.5 to 5.8, does not govern plaintiff's drowning and, under our current state law, they owed Raniel no common law duty to prevent him from swimming while intoxicated.  As for the intentional infliction of emotional distress and Portee claims, they fail as a matter of law.  Defendants' conduct in not knowing or indicating how Raniel drowned did not constitute intentional infliction of emotional distress, and there is no viable Portee claim because plaintiffs did not witness the drowning.

In the Matter of Officer Gregory DiGuglielmo and New Jersey Institute of Technology (085064) (Statewide)

 A plain reading of the relevant statutes dictates that special disciplinary arbitration is not limited to municipal officers, so arbitration is available to public university police officers like Officer DiGuglielmo. Further, pursuant to N.J.S.A. 40A:14-210, an officer suspended with pay prior to termination is eligible to engage in special disciplinary arbitration. The Court therefore reinstates PERC’s decision.

DARO M. LARGOZA, M.D., ET AL. VS. FKM REAL ESTATE HOLDINGS, INC., ET AL

 The court granted leave to appeal to consider the enforceability of a forum selection clause contained in commercial loan agreements executed by sophisticated parties.  The court concluded such provisions are enforceable despite allegations that the contracts in which they are embedded are unenforceable due to fraud, unless the alleged fraud improperly induced assent to the forum selection clause specifically.  In doing so, the court relied upon the United States Supreme Court ruling in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967), and the New Jersey Supreme Court ruling in Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 216-17 (2019), both of which applied this principle to enforce arbitration provisions.  The court also acknowledged authority from other jurisdictions that have applied this rule to uphold forum selection clauses and explained that its holding aligns with the majority approach. 

In addition, distinguishing McNeil v. Zoref, 297 N.J. Super. 213, 219 (App. Div. 1997), the court held the entire controversy doctrine does not vitiate an otherwise-enforceable forum selection clause when the enforcing party is severable from the litigation.  Following Wilfred v. MacDonald Inc. v. Cushman Inc., 256 N.J. Super. 58, 65 (App. Div. 1992), the court also concluded no appreciable inconvenience would result from enforcing the forum selection clause, thereby requiring the parties to litigate their claims in Utah.  

Finally, the court held that the seven-factor analysis detailed by the New Jersey Supreme Court in Cole v. Jersey City Med. Ctr., 215 N.J. 265, 280-81 (2013) to determine whether a party waived the right to enforce an arbitration provision applies equally to the question of whether a party waived the right to enforce a forum selection clause.  The court further explained that the analysis required under Cole is necessarily fact-intensive and therefore declined to exercise original jurisdiction under Rule 2:10-5. 

ASPHALT PAVING SYSTEMS, INC. VS. THE BOROUGH OF STONE HARBOR,

 The Legislature has declared that no business entity may be awarded a public contract unless, prior to or along with its bid, the business entity submits "a statement setting forth the names and addresses" of the individuals owning more than ten percent of the entity.  N.J.S.A. 52:25-24.2 (emphasis added).  In this appeal, the court held that the Legislature did not intend the word "addresses" to be synonymous with "home addresses" and that the statute's requirement is met when the bidder provides its owners' mailing addresses.

Green Knight Capital, LLC v. Gabriel Calderon

 The Tax Sale Law bears no hostility toward investors who otherwise meet the requirements of N.J.S.A. 54:5-89.1 when they prematurely attempt to redeem. Although the investor must always intervene before being allowed to redeem, a misstep like that which occurred here puts the tax sale certificate holder in no worse position than it would have possessed had the error not occurred. Here, because the LLC provided Calderon with more than nominal consideration and because the parties had the benefit of the chancery judge’s full consideration of their competing legal and equitable arguments, the LLC’s premature attempt to redeem should not vitiate the right to redeem it fairly acquired.

PAUL M. CARELLI VS. BOROUGH OF CALDWELL, ET AL. (L-5938-19

PAUL M. CARELLI VS. BOROUGH OF CALDWELL, ET AL. (L-5938-19 The court granted leave to appeal to consider the denial of cross-motions for summary judgment – based on stipulated facts – about whether plaintiff Paul M. Carelli was entitled to enforcement of a contractual provision, upon the early termination of his third four-year term as the Borough of Caldwell's administrator, that purported to allow him a severance package "equal to one month salary for each year of service." The court concluded that this contractual provision was unenforceable because, in allowing a severance package of more than eight months' salary, it was inconsistent with N.J.S.A. 40A:9-138, which imposes both a ceiling and a floor on a municipal administrator's severance to "any unpaid balance of his [or her] salary and his [or her] salary for the next 3 calendar months." For that reason, the court reversed and remanded for entry of summary judgment dismissing Carelli's complaint.

GUY GILLIGAN, ET AL. VS. SUSAN JUNOD, L.P.N., A-1907-21

 

GUY GILLIGAN, ET AL. VS. SUSAN JUNOD, L.P.N.,  A-1907-21

In this appeal the court addresses a question of first impression:  is a licensed practical nurse a "licensed person" as defined in and covered by the Affidavit of Merit (AOM) statute, N.J.S.A. 2A:53A-26 to -29.  Defendant Susan Junod, a licensed practical nurse, appeals from orders declaring that plaintiff did not need to file an AOM to pursue professional-negligence claims against her and denying her motion to dismiss the complaint for failure to provide an AOM.  The court affirms both orders because the AOM statute applies only to certain specified "licensed person[s]" and a licensed practical nurse is not included in the statute.

ROBERT ALAM VS. AMERIBUILT CONTRACTORS (DIVISION OF WORKERS' COMPENSATION)

 ROBERT ALAM VS. AMERIBUILT CONTRACTORS (DIVISION OF WORKERS' COMPENSATION)

Ameribuilt Contractors appeals the workers' compensation judge's February 1, 2022 order rejecting a proposed settlement and disqualifying its assigned insurance counsel, Brown & Connery, LLP (B&C), on the basis of a perceived conflict between Ameribuilt's workers' compensation carrier, Travelers Property Casualty Insurance Co. (Travelers), and Travelers' ostensible insured, respondent Robert Alam.  The court concludes that the judge erred in finding that a conflict existed and, thus, there was no basis for the disqualification.  Accordingly, the court is constrained to reverse.

A trial judge may order the removal of counsel where there is a violation of the Rules of Professional Conduct.  Here, the judge disqualified B&C based on a violation of R.P.C. 1.7, which states, in pertinent part, that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest."  In evaluating whether a conflict exists, however, we are mindful that "[a] corporation is regarded as an entity separate and distinct from its shareholders."  Tully v. Mirz, 457 N.J. Super. 114, 123 (App. Div. 2018) (quoting Strasenburgh v. Straubmuller, 146 N.J. 527, 549 (1996)).  Additionally, "a corporation is regarded in law as an entity distinct from its individual officers, directors, and agents."  Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 761 (1989) (citation omitted).

Guided by these well-established legal principles, the court concludes that the trial judge erred in finding a conflict between Travelers and Alam.  In reaching that conclusion, we hold that the judge failed to distinguish Ameribuilt, the corporation, from Alam, an owner and shareholder.

SUMMARY DCPP VS. D.C.A. AND J.J.C.B., IN THE MATTER OF THE GUARDIANSHIP OF I.A.C.C., J.S.C.C., A.I.C.C. AND I.C.C. (FG-06-0025-20, CUMBERLAND COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

 

DCPP VS. D.C.A. AND J.J.C.B., IN THE MATTER OF THE GUARDIANSHIP OF I.A.C.C., J.S.C.C., A.I.C.C. AND I.C.C. (FG-06-0025-20, CUMBERLAND COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

Defendant appealed from a judgment of guardianship after trial, terminating her parental rights to four of her children.  The panel addressed whether the trial court improperly considered evidence of the children's relationship with their foster parents in violation of prong two of the best-interests test.  That prong was recently amended by the Legislature, which removed the sentence:  "[s]uch harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child."  N.J.S.A. 30:4C-15.1(a)(2) (amended 2021).  The Legislature did not alter the other components of the best-interests standard.

The panel rejected the argument that, by deleting the above language from prong two, the Legislature intended to bar all evidence concerning a child's relationship with resource caregivers, even in the context of the other prongs of the best-interest standard.  Prong two as amended emphasizes consideration of whether a parent is able to overcome harm to the child as well as whether the parent can cease causing future harm.  The amendment clearly isolates those specific inquiries from consideration of the bonds a child has forged with resource caregivers.  Nevertheless, the amendments to prong two do not mean that such a bond may never be considered within any part of the best-interests analysis.  Neither the legislative history nor the plain text necessitates such a sweeping conclusion. 

The panel construed the deletion from prong two to give greater effect to the alteration, in a manner that remains coherent with prong four.  The amended statute requires a court to make a finding under prong two that does not include considerations of caregiver bonding, and then weigh that finding against all the evidence that may be considered under prong four—including the harm that would result from disrupting whatever bonds the child has formed. 

JAMES MEYERS VS. STATE HEALTH BENEFITS COMMISSION (STATE HEALTH BENEFITS COMMISSION)

 JAMES MEYERS VS. STATE HEALTH BENEFITS COMMISSION (STATE HEALTH BENEFITS COMMISSION)

Petitioner, James Meyers, a retired New Jersey State Police captain, appeals from a final decision of the State Health Benefits Commission (SHBC) which discontinued his fully paid health care insurance coverage under the State Health Benefits Plan, and imposed a premium deduction against his monthly retirement check. Petitioner administratively appealed the deduction, contending the SHBC was estopped from terminating his free health care insurance coverage.

In an initial decision, an administrative law judge (ALJ) found that the SHBC was estopped from deducting monthly health insurance premiums from petitioner's retirement payments. In a final decision, the SHBC rejected the ALJ's findings and concluded that it had the right to deduct a premium contribution from petitioner's monthly retirement payments to pay for his family's health insurance coverage. Petitioner appealed the final decision, arguing that the SHBC was equitably estopped from discontinuing no-cost health insurance coverage.

The court held that petitioner was not eligible to receive no-cost health care coverage in retirement under N.J.S.A. 52:14-17.28d(b)(3), because he did not have the requisite creditable service time as of the effective date of the statute. The court also held that principles of equitable estoppel could not be applied on these facts, where petitioner was statutorily ineligible for such coverage.

Morgan Dennehy v. East Windsor Regional Board of Education

 Morgan Dennehy v. East Windsor Regional Board of Education (086350) (Mercer County and Statewide)The coach’s acts and omissions alleged here are governed by a simple negligence standard rather than the heightened standard of recklessness the Court applied when one participant injures another during a recreational activity.

L.R. VS. CHERRY HILL BOARD OF EDUCATION, ET AL. (L-5609-11, CAMDEN COUNTY AND STATEWIDE) (A-1819-20)

 L.R. VS. CHERRY HILL BOARD OF EDUCATION, ET AL. (L-5609-11, CAMDEN COUNTY AND STATEWIDE) (A-1819-20)

Plaintiff L.R. is the mother of a disabled student attending the Camden City Public Schools. She served defendant Cherry Hill Board of Education and its record custodian with an Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -17, request for all settlement agreements from all lawsuits in which defendant was sued by a student and/or their parent. The request asked defendant to redact the parent and student names leaving only their initials. Defendant produced the documents sought but redacted all personally identifiable information (PII), including initials.

Plaintiff appealed. Following the decisions in L.R. v. Camden City Public School District (L.R. I), 452 N.J. Super. 56 (App. Div. 2017), and L.R. v. Camden City Public School District (L.R. II), 238 N.J. 547 (2019), the trial judge dismissed the complaint finding plaintiff was not entitled to the initials because she: (1) Was not authorized to obtain the information by means of a court order; and (2) lacked a common law right of access to student records because defendant had a legitimate claim of confidentiality under the Family Educational Records and Privacy Act, 20 U.S.C. 1232g, and the New Jersey Pupil Records Act, N.J.S.A. 18A:36-19.

Following this appeal, the Department of Education promulgated new regulations governing public access to student records under OPRA in response to L.R. II. The regulations define PII and student records that may be released pursuant to a court order provided the records do not contain any PII. N.J.A.C. 6A:32-2.1. They also state student "records removed of all [PII]" may be released without consent. N.J.A.C. 6A:32-7.5(g)(1).

On appeal, the court affirmed, holding the new regulations were not retroactive, and even if they were defendant's redaction of the initials was consistent with the regulations and the trial judge's ruling that plaintiff was not entitled to unredacted records. The court held plaintiff's reliance on Keddie v. Rutgers, 148 N.J. 36, 40 (1997), establishing the public's common law right to records, and C.E. v. Elizabeth Public School District, 472 N.J. Super. 253 (App. Div. 2022), establishing the right to settlements entered before the Office of Administrative Law under OPRA, were inapposite because those cases involved the failure to produce documents not whether a defendant should have redacted the PII altogether.

SCOTT C. MALZBERG VS. CAREN L. JOSEY, ET AL. (L-7858-17, (A-2883-20)

 SCOTT C. MALZBERG VS. CAREN L. JOSEY, ET AL. (L-7858-17, ESSEX COUNTY AND STATEWIDE) (A-2883-20)

This case presents a question of first impression regarding the scope of the Transportation Network Company Safety and Regulatory Act (TNCSRA or Act), N.J.S.A. 39:5H-1 to -27. The TNCSRA, which was enacted in 2017, comprehensively regulates companies and drivers that use a digital network such as a mobile phone application (app) to connect a "rider" to a "prearranged ride." Plaintiff was injured in a motor vehicle accident while he was operating his motorcycle as an Uber Eats delivery driver. The novel legal issue raised in this appeal is whether the Act—which requires "transportation network companies" to provide at least $1.5 million in underinsured motorist coverage—protects drivers while they are delivering food and not just when they are in the process of transporting passengers. The court concludes that the Act by its literal terms applies only to the prearranged transport of riders and not to the prearranged delivery of food.

In determining the scope of the statute's intended reach, that is, its "overall meaning," the court pays special attention to the definition section, noting that the very existence—or non-existence—of specific definitions reveals the basic concepts and principles the Legislature deemed to be especially important, warranting precise and explicit formulations. The Legislature's decision to define certain terms but not others, the court reasons, can provide insight into the overall meaning of the statutory scheme and the scope of its reach. In this instance, nothing in the definition section—or any other section of the Act for that matter—refers to the delivery of food. The absence of any reference to food delivery in the definition section stands in stark contrast to the interrelated definitions that refer explicitly and repeatedly to "rides" and "riders," which clearly denote the transport of human passengers.

Because the primary question posed in this case is easily resolved under a plain-text analysis, the court acknowledges that it need not consider extrinsic sources to determine legislative intent. The court nonetheless adds in the interest of completeness that nothing in the legislative history supports plaintiff's contention that the Act applies to food delivery services. The court further notes that regulations promulgated by the Motor Vehicle Commission support the court's interpretation as to the scope of the Act.

The court acknowledges that by enacting the TNCSRA, the Legislature recognized the commercial and societal value of new technologies that use mobile digital networks to connect customers with service providers. But while the use of an app is necessary to trigger the Act's provisions, that alone is not sufficient. The court concludes that to fall within the Act's jurisdiction—and thus to invoke the protections of its minimum insurance coverage provisions—the app-based connection must be used to arrange a ride for a human passenger.

The court further acknowledges that while the TNCSRA is of comparatively recent vintage, it was enacted before the COVID-19 pandemic, during which the imperative for social distancing simultaneously increased the demand for home delivery of food and reduced the demand for ridesharing. The court emphasizes that the evolution of the supply and demand marketplace since the TNCSRA was enacted does not change its plain text. While there may be circumstances, not present here, where it is necessary and appropriate to teach an old law to do new tricks, a statute's text does not evolve sua sponte. Reviewing courts, moreover, must afford due deference to the legislative process. Accordingly, the court stresses, it is for the political branches, not the Judiciary, to amend a statute to account for new developments and to fill any "holes" in the statute's scope and reach.

AMADA SANJUAN VS. SCHOOL DISTRICT OF WEST NEW YORK, HUDSON COUNTY (C-000030-21, HUDSON COUNTY AND STATEWIDE) (A-3273-20 )

 AMADA SANJUAN VS. SCHOOL DISTRICT OF WEST NEW YORK, HUDSON COUNTY (C-000030-21, HUDSON COUNTY AND STATEWIDE) (A-3273-20 )

Appellant challenges a Law Division order confirming an arbitration award which sustained tenure charges filed by respondent West New York Board of Education ("Board") against her; demoted her from assistant principal to a fourth-grade teacher; and determined she was not entitled to back pay withheld from her under N.J.S.A. 18A:6-14 for a one-hundred-and-twenty-day suspension-without-pay period that was imposed upon the Board's certification of the charges. This appeal requires us to consider issues of first impression: (1) whether the arbitrator had the authority to demote appellant under N.J.S.A. 18A:6-16; and (2) whether the arbitrator had the right to deny appellant back pay arising from her suspension-without-pay period after determining her employment should not be terminated.

The court affirms the arbitrator's determination that appellant was not entitled to back pay withheld from her during her suspension-without-pay period based upon his determination that her conduct was unbecoming of a teaching staff member. The court reverses and remands because upon determining appellant's conduct was unbecoming but that she should not be terminated, the arbitrator lacked the statutory authority to demote her from her assistant principal position and he could only reduce her compensation. Appellant should be reinstated to her assistant principal position. On remand, the arbitrator must determine to what extent, if any, appellant's compensation should be further reduced through suspending her without pay or withholding salary increments, or a combination thereof.

ASHISH KUMAR, ET AL. VS. PISCATAWAY TOWNSHIP COUNCIL, ET AL. (L-5017-21, MIDDLESEX COUNTY AND STATEWIDE) (A-0227-21)

 ASHISH KUMAR, ET AL. VS. PISCATAWAY TOWNSHIP COUNCIL, ET AL. (L-5017-21, MIDDLESEX COUNTY AND STATEWIDE) (A-0227-21)

In this matter, the court considered whether a municipality may approve a resolution to place non-binding public opinion questions before the electorate when initiative petitions concerning the identical issues are on the same ballot. The majority concluded the municipality was not authorized under N.J.S.A. 19:37-1 to pass the resolutions regarding the public opinion questions because the electorate was considering the same issues on the ballot in their vote on the initiative questions.

The court also considered the trial court's order that denied plaintiffs' application for an award of attorney's fees under the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2. Because defendants' actions of passing the unauthorized resolutions deprived plaintiffs of their substantive right to initiative, the majority reversed the court's order denying plaintiffs a counsel fee award.

Judge Smith dissented.

Miriam Rivera v. The Valley Hospital, Inc.

 Miriam Rivera v. The Valley Hospital, Inc. (085992/085993/085994) (Bergen County and Statewide) (A-25/26/27-21; 085992/085993/085994)

As a matter of law, the evidence presented, even affording plaintiffs all favorable inferences, does not establish that defendants’ acts or omissions were motivated by actual malice or accompanied by wanton and willful disregard for Ruscitto’s health and safety. A reasonable jury could not find by clear and convincing evidence that punitive damages are warranted based on the facts of this case, and partial summary judgment should have been granted.

BRIAN AND KRISTINA PUGLIA VS. ROSEMARIA PHILLIPS, ET AL. (L-0945-16, BURLINGTON COUNTY AND STATEWIDE) (A-5367-18)

 BRIAN AND KRISTINA PUGLIA VS. ROSEMARIA PHILLIPS, ET AL. (L-0945-16, BURLINGTON COUNTY AND STATEWIDE) (A-5367-18)

Plaintiffs' complaint alleged wrongful eviction under the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12, fraud, negligent misrepresentation, and other claims. Defendants filed an answer and counterclaim, asserting plaintiffs' negligence caused damage to the property and rendered portions of it "unusable." The parties cross-moved for summary judgment on the wrongful eviction cause of action, and the judge granted defendants summary judgment and denied plaintiffs' motion.

Defendants then made an offer of judgment, which plaintiffs accepted the next day. Plaintiffs' proposed order for judgment was limited to "the remaining counts" of the complaint and sought to preserve appeal of the interlocutory summary judgment orders. Defendants objected, citing Rule 4:58-4(c), which provides: "If a claimant asserts multiple claims for relief or if a counterclaim has been asserted against the claimant, the claimant's offer shall include all claims made by or against that claimant. If a party not originally a claimant asserts a counterclaim, that party's offer shall also include all claims by and against that party." (emphasis added). The judge entered defendants' proposed order of judgment that was not limited to "the remaining counts" of the complaint.

Plaintiffs appealed, in part arguing the interlocutory orders were appealable despite their acceptance of defendants' offer of judgment, citing, as they did in the Law Division, our decision in City of Cape May v. Coldren, 329 N.J. Super. 1, 10 (App. Div. 2000). The court affirmed the order of judgment without considering the merits of plaintiffs' arguments regarding the interlocutory orders by distinguishing Coldren on its facts and noting that decision was issued prior to adoption of Rule 4:58-4(c). Plaintiffs' acceptance of the offer of judgment settled all claims "by and against" defendants, including any claims dismissed on summary judgment.

Larry Schwartz v. Nicholas Menas, Esq. (085184) (Monmouth County and Statewide) (A-54/55-20

 Larry Schwartz v. Nicholas Menas, Esq. (085184) (Monmouth County and Statewide) (A-54/55-20; 086155)

The Court joins the majority of jurisdictions that reject a per se ban on claims by new businesses for lost profits damages, and it declines to follow Weiss to the extent that it bars any claim by a new business for such damages. Claims for lost profits damages are governed by the standard of reasonable certainty and require a fact-sensitive analysis. Because it is substantially more difficult for a new business to establish lost profits damages with reasonable certainty, a trial court should carefully scrutinize a new business’s claim that a defendant’s tortious conduct or breach of contract prevented it from profiting from an enterprise in which it has no experience and should bar that claim unless it can be proven with reasonable certainty. The Court remands these matters so that the trial court may decide defendants’ motions in accordance with the proper standard.

BRIAN AND KRISTINA PUGLIA VS. ROSEMARIA PHILLIPS, ET AL. (L-0945-16, BURLINGTON COUNTY AND STATEWIDE) (A-5367-18)

 BRIAN AND KRISTINA PUGLIA VS. ROSEMARIA PHILLIPS, ET AL. (L-0945-16, BURLINGTON COUNTY AND STATEWIDE) (A-5367-18)

Plaintiffs' complaint alleged wrongful eviction under the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12, fraud, negligent misrepresentation, and other claims. Defendants filed an answer and counterclaim, asserting plaintiffs' negligence caused damage to the property and rendered portions of it "unusable." The parties cross-moved for summary judgment on the wrongful eviction cause of action, and the judge granted defendants summary judgment and denied plaintiffs' motion.

Defendants then made an offer of judgment, which plaintiffs accepted the next day. Plaintiffs' proposed order for judgment was limited to "the remaining counts" of the complaint and sought to preserve appeal of the interlocutory summary judgment orders. Defendants objected, citing Rule 4:58-4(c), which provides: "If a claimant asserts multiple claims for relief or if a counterclaim has been asserted against the claimant, the claimant's offer shall include all claims made by or against that claimant. If a party not originally a claimant asserts a counterclaim, that party's offer shall also include all claims by and against that party." (emphasis added). The judge entered defendants' proposed order of judgment that was not limited to "the remaining counts" of the complaint.

Plaintiffs appealed, in part arguing the interlocutory orders were appealable despite their acceptance of defendants' offer of judgment, citing, as they did in the Law Division, our decision in City of Cape May v. Coldren, 329 N.J. Super. 1, 10 (App. Div. 2000). The court affirmed the order of judgment without considering the merits of plaintiffs' arguments regarding the interlocutory orders by distinguishing Coldren on its facts and noting that decision was issued prior to adoption of Rule 4:58-4(c). Plaintiffs' acceptance of the offer of judgment settled all claims "by and against" defendants, including any claims dismissed on summary judgment.

FULTON BANK OF NEW JERSEY VS. CASA ELEGANZA, LLC, ET AL. (F-000615-18, ATLANTIC COUNTY AND STATEWIDE) (A-2859-20)

 FULTON BANK OF NEW JERSEY VS. CASA ELEGANZA, LLC, ET AL. (F-000615-18, ATLANTIC COUNTY AND STATEWIDE) (A-2859-20)

Fulton Bank (the Bank) foreclosed on a mortgage recorded prior to the filing of Iron Gate at Galloway's Homeowners' Association's (HOA) Declaration of Covenants. The HOA was created and the Declaration filed pursuant to Galloway Township's major subdivision approval of the relevant lots. The Bank sold the remaining lots after foreclosure, but at closing refused to pay the HOA fees accrued during its period of ownership. The Bank filed a motion under the foreclosure docket number, contending it owed no fees because foreclosure on the earlier-filed mortgage effectively nullified the Declaration of Covenants. The court concluded that the Bank was liable for the fees in arrears because the Declaration constituted an equitable servitude running with the land, as outlined in Highland Lakes Country Club & Cmty. Ass'n v. Franzino, 186 N.J. 99 (2006).

Norman International, Inc. v. Admiral Insurance Company (086155) (Morris County and Statewide) (A-24-21; 086155)

 Norman International, Inc. v. Admiral Insurance Company (086155) (Morris County and Statewide) (A-24-21; 086155)

The policy’s broad and unambiguous language makes clear that a causal relationship is not required in order for the exclusionary clause to apply; rather, any claim "in any way connected with" the insured’s operations or activities in a county identified in the exclusionary clause is not covered under the policy. Richfield’s operations in an excluded county are alleged to be connected with the injuries for which recovery is sought, so the exclusion applies. Admiral has no duty to defend a claim that it is not contractually obligated to indemnify.

State v. F.E.D. (086187) (Essex County & Statewide) (A-12-21;

 State v. F.E.D. (086187) (Essex County & Statewide) (A-12-21; 086187)

The Compassionate Release Statute does not require that an inmate prove that he is unable to perform any activity of basic daily living in order to establish a "permanent physical incapacity" under N.J.S.A. 30:4-123.51e(l). Rather, the statute requires clear and convincing evidence that the inmate’s condition renders him permanently unable to perform two or more activities of basic daily living, necessitating twenty-four-hour care.

East Bay Drywall, LLC v. Department of Labor and Workforce Development (085770) (Statewide) (A-7-21; 085770)

 East Bay Drywall, LLC v. Department of Labor and Workforce Development (085770) (Statewide) (A-7-21; 085770)

The Commissioner’s finding that East Bay did not supply sufficient information to prove the workers’ independence under the ABC test’s prong C was not arbitrary, capricious, or unreasonable, but rather was supported by the absence of record evidence as to that part of the test. The Court is satisfied that all sixteen workers in question are properly classified as employees, and it remands to the Department for calculation of the appropriate back-owed contributions.

IN THE MATTER OF NJ TRANSIT AWARD OF CONTRACTS NO. 21-048A AND NO. 21-048B, ETC. (NEW JERSEY TRANSIT) (A-2598-21)

 IN THE MATTER OF NJ TRANSIT AWARD OF CONTRACTS NO. 21-048A AND NO. 21-048B, ETC. (NEW JERSEY TRANSIT) (A-2598-21)

We granted Academy Express LLC's application to file an emergent motion to stay New Jersey Transit's award or execution of a contract for regular route local bus services in Hudson County pending Academy Express's appeal of NJ Transit's decision to award the contract to Orange, Newark, Elizabeth Bus Inc. (ONE Bus) and permitted ONE Bus to intervene as an interested party, entering a temporary stay pursuant to Rule 2:9-8 pending our disposition of the motion. Having considered the briefs and oral argument — and without prejudice to the merits panel's ultimate disposition of the matter — we deny the motion and dissolve our temporary stay, concluding Academy Express has not demonstrated a reasonable probability of success on the merits.

The powers of NJ Transit are "vested in the voting members of the board." N.J.S.A. 27:25-4(e). The corporation has been statutorily exempted from the need to bid the contracting-out of bus routes, N.J.S.A. 27:25-6(b), N.J.S.A. 27:25-11(g)(3)(d), and may choose the proposal the Board determines to be "the most advantageous to the corporation, price and other factors considered," N.J.S.A. 27:25-11(c)(1),(2). The Board also has broad discretionary authority to reject any proposal when it determines "it is in the public interest to do so," N.J.S.A. 27:25-11(c), and "shall" consider the "adequacy of performance by a carrier or its affiliates under other contracts . . . with NJ Transit" under its "contracting out" regulations, N.J.A.C. 16:85-2.3(a)(4).

Given that broad authority, NJ Transit could certainly consider the recently settled qui tam action against Academy Express and its affiliated companies and determine it was in the public interest to reject a proposal from a carrier that had only weeks before entered into a multi -million-dollar settlement with the State in a massive fraud case involving the same routes covered by these contracts. See Keyes Martin & Co. v. Dir., Div. of Purchase & Prop., 99 N.J. 244, 262 (1985) (upholding Director's rejection of a bid "in the public interest" based on an appearance of wrongdoing attributable to a possible conflict of interest).

DORETTA CERCIELLO, ETC. VS. SALERNO DUANE, INC., ET AL. (L-1690-17, UNION COUNTY AND STATEWIDE) (A-3090-20)

 DORETTA CERCIELLO, ETC. VS. SALERNO DUANE, INC., ET AL. (L-1690-17, UNION COUNTY AND STATEWIDE) (A-3090-20)

In this class action matter arising out of the purchase of a vehicle, the court considers whether defendants' material breach of an arbitration agreement––the failure to pay the administration fees––precludes them from asserting the waiver of the right to pursue a class action in the subsequent Superior Court litigation.

The arbitration agreement clearly informed consumer purchasers they were waiving their right to pursue a class action in court and in arbitration. Although defendants cannot compel arbitration because of their failure to pay the requisite fees, their breach of the agreement does not eradicate the other provisions to which plaintiff agreed––namely the waiver of the right to pursue a class action in court. This court affirmed the orders denying class certification.

Crystal Point Condominium Association, Inc. v. Kinsale Insurance Company (085606) (Hudson County & Statewide) (A-76-20

 Crystal Point Condominium Association, Inc. v. Kinsale Insurance Company (085606) (Hudson County & Statewide) (A-76-20; 085606)

Crystal Point may assert direct claims against Kinsale pursuant to the Direct Action Statute in the setting of this case. Based on the plain language of N.J.S.A. 17:28-2, however, Crystal Point’s claims against Kinsale are derivative claims, and are thus subject to the terms of the insurance policies at issue, including the provision in each policy mandating binding arbitration of disputes between Kinsale and its insureds. Crystal Point’s claims against Kinsale are therefore subject to arbitration.

HOLLYWOOD CAFÉ DINER, INC. VS. GERI JAFFEE, ET AL. (L-2786-19, CAMDEN COUNTY AND STATEWIDE) (A-2272-20)

 HOLLYWOOD CAFÉ DINER, INC. VS. GERI JAFFEE, ET AL. (L-2786-19, CAMDEN COUNTY AND STATEWIDE) (A-2272-20)

In the midst of the COVID-19 pandemic, the parties in this legal malpractice action exchanged minimal discovery before the court issued its notice pursuant to Rule 4:36-2, advising that discovery would end in sixty days and any application for an extension must be made before the discovery end date (DED). Thirty days later, the court issued a trial date.

The parties secured a consensual sixty-day discovery extension, see Rule 4:24-1(c), but when defendants moved before expiration of the DED for a further extension, the judge denied the motion, concluding the exceptional circumstances standard applied because a trial date was set, and defendants failed to meet that standard. Plaintiff's motion for reconsideration was similarly denied, but not before defendants sought summary judgment, essentially arguing the lack of expert opinion doomed plaintiff's complaint. The judge granted defendants summary judgment.

The court reversed. The court construed Rule 4:24-1(c), which states a judge shall grant an extension motion upon good cause if made before the DED, but also states a court may grant a discovery extension only in exceptional circumstances once an arbitration or trial date is set. The court concluded that while court administrators may send notices setting future arbitration and trial dates before discovery ends, the plain language of the Rule, read in pari materia with other rules, requires judges to apply the good cause standard if the motion for a discovery extension is made before the DED. Plaintiff met the good cause standard.

IN THE MATTER OF THE APPLICATION OF THE BOROUGH OF ENGLEWOOD CLIFFS, ETC. (L-6119-15, BERGEN COUNTY AND STATEWIDE) (A-3119-20)

 IN THE MATTER OF THE APPLICATION OF THE BOROUGH OF ENGLEWOOD CLIFFS, ETC. (L-6119-15, BERGEN COUNTY AND STATEWIDE) (A-3119-20)

Following years of litigation and a trial, the Borough of Englewood Cliffs (the Borough) was found to have failed for decades to comply with its constitutional obligations to provide its fair share of affordable housing. Thereafter, the Borough entered into settlement agreements to allow affordable housing to be built. Following a change in the membership of the Borough's council, however, the Borough moved to vacate the settlement agreements, contending that two council members who had voted for the agreements had conflicts of interest. That argument was in direct contradiction to the position the Borough had taken before the trial court and in a related litigation where the Borough had argued that there were no conflicts of interest.

The court affirms the trial court's rejection of the Borough's arguments for several reasons, including that the Borough was judicially estopped from claiming any conflict. The record establishes that for years the Borough has stalled various efforts to allow affordable housing to be built. The court emphasizes that the time for delaying constitutional compliance is over.

SHENISE MONK, ET AL. VS. KENNEDY UNIVERSITY HOSPITAL, ET AL. (L-3527-20, CAMDEN COUNTY AND STATEWIDE) (CONSOLIDATED) (A-3361-20/

 SHENISE MONK, ET AL. VS. KENNEDY UNIVERSITY HOSPITAL, ET AL. (L-3527-20, CAMDEN COUNTY AND STATEWIDE) (CONSOLIDATED) (A-3361-20/A-3362-20/A-3363-20)

Defendants' motions for summary judgment to dismiss the complaint as untimely because it was filed four and a half years after decedent's death were denied by the trial court, which allowed the action to proceed by applying the minority tolling provision found in N.J.S.A. 2A:14-2(a), concluding the Legislature did not make clear whether the Act intended to distinguish between minors who died and minors who survived.

The court reversed, finding minority tolling applies only to actions brought on behalf of minors, and not to actions brought on behalf of decedents or their estates. The word "minor" requires a living human being and the plain legal meaning of "minor's 13th birthday" demonstrates the Legislature's intent that only living minors have birthdays. Plaintiffs were limited to wrongful death and survival claims causes of action, each of which applies a two-year statute of limitations. The court vacated the orders denying summary judgment but remanded to the trial court for findings as to whether defendants had substantially complied with those statutes.

Linden Democratic Committee v. City of Linden (086255) (Union County & Statewide) (A-30-21;

 Linden Democratic Committee v. City of Linden (086255) (Union County & Statewide) (A-30-21; 086255)

In amending in 1990 Sections 11 and 13 of the Municipal Vacancy Law, N.J.S.A. 40A:16-11 and -13, the Legislature removed the governing body’s discretion to keep vacant a seat previously occupied by a nominee of a political party. Instead, the Legislature empowered the municipal committee of the political party whose nominee previously occupied the vacant seat to submit three names to the governing body. N.J.S.A. 40A:16 11. Section 11 mandates that the governing body choose one of the municipal committee’s three nominees.

Thomasenia L. Fowler v. Akzo Nobel Chemicals, Inc. (085939) (Middlesex County & Statewide) (A-5-21

 Thomasenia L. Fowler v. Akzo Nobel Chemicals, Inc. (085939) (Middlesex County & Statewide) (A-5-21; 085939)

As to the duty to warn, an asbestos manufacturer or supplier that places inadequate warnings on asbestos bags used in the workplace has breached its duty to the worker, regardless of whether it provides the employer with the correct information, which is reasonably intended to reach its employees. As to medical causation, the trial court’s modified Model Jury Charge on proximate cause sufficiently guided the jury.

Robert Sipko v. Koger, Inc. (085022) (Bergen County & Statewide) (A-74-20

 Robert Sipko v. Koger, Inc. (085022) (Bergen County & Statewide) (A-74-20; 085022)

In light of all the defendants’ conduct regarding KDS and KPS to strip Robert of his rightful interests, equity cannot abide imposing a marketability discount to the benefit of defendants. The trial court’s acceptance of Robert’s expert’s valuation of the company fell within its broad discretion and was fully supported by the record. Defendants were given the opportunity to present an expert valuation of the companies on remand but made the strategic decision not to do so. The Court declines to provide defendants with another bite of this thoroughly chewed apple and reinstates the judgment of the trial court.

MAC PROPERTY GROUP ET AL. VS. SELECTIVE FIRE AND CASUALTY INSURANCE CO. PRECIOUS TREASURES LLC VS. MARKEL INS. ET AL. (L-2629-20, L 2630-20, L-2631-20, CAMDEN COUNTY and L-0820-20 and L-0892-20, MERCER COUNTY AND STATEWIDE) (CONSOLIDATED) (A-0714-20/A-0962-20/A-1034-20/A-1110-20/A-1111-20/A-1148-20)

 MAC PROPERTY GROUP ET AL. VS. SELECTIVE FIRE AND CASUALTY INSURANCE CO. PRECIOUS TREASURES LLC VS. MARKEL INS. ET AL. (L-2629-20, L 2630-20, L-2631-20, CAMDEN COUNTY and L-0820-20 and L-0892-20, MERCER COUNTY AND STATEWIDE) (CONSOLIDATED) (A-0714-20/A-0962-20/A-1034-20/A-1110-20/A-1111-20/A-1148-20)

These six back-to-back appeals arising from Law Division orders in two vicinages have been consolidated for the issuance of a single opinion. They require the court to consider an issue of first impression –– whether in the context of Rule 4:6-2(e) motions to dismiss with prejudice, insurance policies issued by defendants did not cover business losses incurred by plaintiffs that were forced to close or limit their operations as a result of Executive Orders issued by Governor Philip Murphy to curb the COVID-19 global health crisis.

We affirm because we conclude the motion judges were correct in granting Rule 4:6-2(e) dismissals of plaintiffs' complaints with prejudice for failure to state a claim on the basis that plaintiffs' business losses were not related to any "direct physical loss of or damage to" as required by the terms of their insurance policies. We conclude plaintiffs' business losses were also not covered under their insurance policies' civil authority clauses, which provided coverage for losses sustained from governmental actions forcing closure or limiting business operations under certain circumstances. We further conclude defendants' denial of coverage was not barred by regulatory estoppel. In the alternative, we conclude that even if plaintiffs' business losses otherwise satisfied the requirements of the relevant clauses, coverage was barred by their insurance policies' virus exclusions and endorsements because the Executive Orders were a direct result of COVID-19.

FAYE HOELZ VS. ANDREA LEGATH BOWERS, M.D., ET AL. VS. LUTHERAN CROSSINGS ENHANCED LIVING, ET AL. (L-0620-16, BURLINGTON COUNTY AND STATEWIDE) (A-1534-21)

 FAYE HOELZ VS. ANDREA LEGATH BOWERS, M.D., ET AL. VS. LUTHERAN CROSSINGS ENHANCED LIVING, ET AL. (L-0620-16, BURLINGTON COUNTY AND STATEWIDE) (A-1534-21)

After settling her medical malpractice suit with plaintiff's estate, defendant-doctor Bowers was prepared to try her third-party contribution claim against third-party defendant Comiskey, who also treated plaintiff but was never named as a direct defendant. Comiskey moved to dismiss, arguing the Joint Tortfeasor Contribution Law, (the JTCL), N.J.S.A. 2A:53A-1 to -5, predicated a contribution-only claim upon plaintiff's recovery of a "money judgment" against Bowers. The settlement and release executed by the parties did not satisfy the JTCL. The motion judge denied Comiskey's motion, finding it was untimely, and because the settlement was placed on the public website of the Division of Consumer Affairs, as required by regulation, the settlement was the equivalent of a money judgment.

On leave granted, the court reversed. The court reviewed a line of cases from the Supreme Court and the Appellate Division that have consistently construed the right to contribution under the JTCL as requiring entry of a money judgment against the contribution claimant.

The court also raised concern about continued application of the Court's holding in Young v. Steinberg, 53 N.J. 252 (1969). In Young, the Court held that "[a] suit for contribution based on a settlement which has been elevated to the status of a judgment by formal court proceeding, and which discharges the injured party's claim against a non-settling joint tortfeasor, comports with the intent of our statutory scheme." Id. at 255 (emphasis added). At trial, the contribution claimant must still "establish a common liability . . . and the quantum of the damages ensuing from the joint offense." Ibid.

The court noted Young was decided prior to enactment of the Comparative Negligence Act (the CNA), N.J.S.A. 2A:15-5.1 to -5.8. As a result, pro rata apportionment of damages under the JTCL was supplanted by apportionment of liability and damages based on comparative fault.

SHEILA BRYANT, ET AL. VS. COUNTY OF CUMBERLAND (L-0084-20, CUMBERLAND COUNTY AND STATEWIDE) (A-0726-20)

 SHEILA BRYANT, ET AL. VS. COUNTY OF CUMBERLAND (L-0084-20, CUMBERLAND COUNTY AND STATEWIDE) (A-0726-20)

The trial court dismissed plaintiffs' personal injury complaint against Cumberland County because plaintiffs served their notice of claim on the county clerk rather than the clerk of the board of county commissioners. Recognizing that N.J.S.A. 59:8-7 and -10 do not specifically identify the county office or officer to be served with a notice of claim, the court held as a matter of first impression that service on the county clerk suffices.

VADIM CHEPOVETSKY, ET AL. VS. LOUIS CIVELLO, JR. (C-000008-19, MIDDLESEX COUNTY AND STATEWIDE) (A-0476-21)

 VADIM CHEPOVETSKY, ET AL. VS. LOUIS CIVELLO, JR. (C-000008-19, MIDDLESEX COUNTY AND STATEWIDE) (A-0476-21)

In January 2007, defendant sold a business to a relative of the plaintiffs. All but $12,500 of the $196,5000 purchase price was financed by defendant. The loan was secured by a mortgage on plaintiffs' residence and the personal guaranty of plaintiff Vadim Chepovetsky. Shortly thereafter, the buyer defaulted. The maturity date of the mortgage was February 22, 2012. Litigation in 2008 did not result in a judgment. In 2011, plaintiffs filed a joint Chapter Seven bankruptcy. The debt schedules list defendant as an unsecured creditor. The bankruptcy trustee abandoned his interest in the plaintiffs' residence. A discharge was granted to plaintiffs and a final decree was entered closing the case a no-asset bankruptcy. Defendant received timely notice of the bankruptcy filing and the discharge.

Thereafter, plaintiffs filed this action to quiet title. Defendant filed a counterclaim, seeking to enter judgment for personal liability against plaintiffs on the guaranty and to fix the amount due on the mortgage. Plaintiffs did not raise the affirmative defense of discharge in bankruptcy. Plaintiffs' complaint was dismissed for failing to provide discovery. The court conducted a bench trial on the counterclaim. Plaintiffs did not attend the trial and their attorney did not raise the defense of discharge in bankruptcy. The court entered judgment for $410,800 against Chepovetsky but not Svetlana Nashtatik.

Thereafter, plaintiffs moved to vacate the judgment, alleging it was void due to their bankruptcy discharge, and to vacate the dismissal of their complaint, because they were not required to respond to defendant's discovery demands related to a debt discharged in bankruptcy. They also argued that foreclosure was barred by the six-year statute of limitations imposed by N.J.S.A. 2A:50-56.1. Defendant opposed the motion, relying on equitable principles, including unclean hands, and asserted that plaintiffs did not prove that Chepovetsky's liability on the guaranty was discharged.

The trial court vacated the judgment and the order dismissing the quiet title action. The court found the judgment was void ab initio because Chepovetsky's "personal debt" to defendant was discharged in bankruptcy. The court stated it was unaware of the discharge in bankruptcy when it entered judgment against Chepovetsky. The court found the order dismissing the complaint was "improvidently entered" and reinstated the complaint, noting that pursuant to 11 U.S.C. § 524, plaintiffs were "not obligated to do anything" and were "entitled to disregard" discovery that was part of an attempt to collect a discharged debt. The court also found that the mortgage matured on February 22, 2012, and defendant failed to institute a timely foreclosure action within six years. Therefore, an action to quiet title was appropriate.

We granted defendant leave to appeal. Applying the Supremacy Clause, the court held that the nature, extent, and enforceability of a discharge in bankruptcy is controlled by the Bankruptcy Code and interpretative federal case law. Pursuant to 11 U.S.C. § 524, debtors are not required to defend a postdischarge collection action. Consequently, they were not required to provide discovery, and the failure to plead discharge in bankruptcy as an affirmative defense did not waive that defense or estop plaintiffs from asserting it. Enforcing the waiver of the affirmative defense of discharge in bankruptcy under Rule 4:5-4 would violate the Supremacy Clause and be inconsistent with substantial justice. The court rejected defendant's reliance on the Rooker-Feldman doctrine.

The court held that Chepovetsky's personal liability on the guaranty was discharged in bankruptcy and that Nashtatik was not a guarantor of the loan. Accordingly, the judgment imposing personal liability on Chepovetsky was void ab initio and properly vacated.

As to the mortgage lien, the court held that defendant was entitled to a judgment fixing the amount due on the mortgage, explaining that a discharge in bankruptcy only discharges the personal liability of the debtors, and the mortgage lien remains enforceable against their real property if the foreclosure action is timely filed. The court expressed no opinion on whether a future action to foreclose the mortgage would be time-barred by the applicable statute of limitations. The ruling that foreclosure was time-barred was vacated, with that issue to be reconsidered on remand.

C.V., ET AL. VS. WATERFORD TOWNSHIP BOARD OF EDUCATION, ET AL. (L-1981-14, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0626-20)

 C.V., ET AL. VS. WATERFORD TOWNSHIP BOARD OF EDUCATION, ET AL. (L-1981-14, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0626-20)

The court considered a matter of first impression relating to the application of the New Jersey Law Against Discrimination (LAD). Specifically, the court considered whether the LAD applies to claims arising from a sexual predator's criminal assaults against a young schoolgirl where those crimes were committed on a school bus. Under the circumstances of this case, the court concluded the LAD did not apply, especially where, as here, there was no evidence that the predator's compulsive and repetitive behavior was the result of any proven intention to discriminate specifically against young women. The court found the LAD was simply not intended to provide a civil remedy for child sex abuse committed by compulsive pedophiles. Even if it was, it concluded a victim must demonstrate the discriminatory conduct would not have occurred 'but for' the student's protected characteristic. The court concluded the plaintiffs did not meet that burden. The court's opinion construing the LAD did not address or preclude relief under other laws that were not invoked by plaintiffs on appeal.

JUAN J. BARRON VS. SHELLEY GERSTEN, ET AL. (L-2081-20, UNION COUNTY AND STATEWIDE) (A-0912-20)

 JUAN J. BARRON VS. SHELLEY GERSTEN, ET AL. (L-2081-20, UNION COUNTY AND STATEWIDE) (A-0912-20)

Plaintiff's complaint about a June 21, 2018 automobile accident was filed on June 29, 2020. Defendants moved to dismiss the complaint for failure to commence the action timely, citing the two-year statute of limitations set forth in N.J.S.A. 2A:14-2(a). In opposition, plaintiff contended the complaint was timely filed, asserting the Supreme Court had tolled the statute of limitations in its June 11, 2020 Fourth Omnibus Order related to the COVID-19 pandemic and effectively had added fifty-five days to the statute-of-limitations period. The trial court granted defendants' motion, finding the Supreme Court in its Omnibus Orders related to the COVID-19 pandemic had not added time to the statute of limitations but had deemed the period of time from March 16, 2020, to May 10, 2020, a legal holiday for purposes of computing time.

The court agreed with the trial court, finding the Supreme Court had issued an order on March 17, 2020, in which the Court cited its constitutional rule-making authority under Article VI, section 2, paragraph 3 of the New Jersey Constitution to deem the relevant time period a legal holiday. Noting the express language in the Fourth Omnibus Order "affirm[ing] the provisions of [its] prior orders" and that the Supreme Court had not cited any new or different authority for its directive regarding the computation of time, the court concluded the Supreme Court in the Fourth Omnibus Order was exercising its constitutional rule-making authority to deem March 16, 2020, through May 10, 2020, a legal holiday and was not adding time to the statute of limitations.

ANTHONY PETRO, ET AL. VS. MATTHEW J. PLATKIN, ETC. (C-000053-19, MERCER COUNTY AND STATEWIDE) (A-3837-19)

 ANTHONY PETRO, ET AL. VS. MATTHEW J. PLATKIN, ETC. (C-000053-19, MERCER COUNTY AND STATEWIDE) (A-3837-19)

In this appeal, the court affirmed the dismissal of plaintiffs' complaint challenging the Medical Aid in Dying for the Terminally Ill Act, N.J.S.A. 26:16-1 to -20, which allows qualified terminally ill patients to request and obtain from his or her physician a prescription for medication that the patient can choose to self-administer to end his or her life in a "humane and dignified manner." The court held that plaintiffs, a terminally ill patient, a doctor, and a pharmacist, lacked standing to challenge the Act because the legislation provides that participation under its provisions is voluntary for patients and health care professionals. It also concluded that plaintiffs' constitutional challenges to the legislation, premised on the New Jersey Constitution's single object rule and right to enjoy and defend life and the United States Constitution's Free Exercise Clause, lacked merit.

CATHERINE PARSELLS VS. BOARD OF EDUCATION OF THE BOROUGH OF SOMERVILLE, ETC. (NEW JERSEY COMMISSIONER OF EDUCATION) (A-3084-19)

 CATHERINE PARSELLS VS. BOARD OF EDUCATION OF THE BOROUGH OF SOMERVILLE, ETC. (NEW JERSEY COMMISSIONER OF EDUCATION) (A-3084-19)

A tenured teacher asked the board of education about switching from a full-time role to a part-time position with benefits. The board approved her transfer but failed to inform her of the impact it would have on her tenured status. When the teacher re-applied for a full-time role, she did not get the job. The teacher appealed and an administrative law judge found for the board. However, the Commissioner of Education reversed the initial decision, finding instead that the teacher did not knowingly waive her right to a full-time position because the board had a duty to inform the teacher of the consequences of going part-time under Bridgewater-Raritan Educ. Ass'n v. Bd. of Educ. of Bridgewater-Raritan Sch. Dist., 221 N.J. 349 (2015).

The court affirmed the Commissioner's decision and interpretation of Bridgewater-Raritan, which established a school's duty, under N.J.S.A. 18A:16-1.1, to provide notice to replacement teachers concerning the limitations on service time towards tenure. The court held that Bridgewater-Raritan compels school boards to notify in advance a full-time tenured teacher who voluntarily takes a part-time teaching position that she is at risk of not getting her full-time job back.

CHERYL ROOTH VS. BOARD OF TRUSTEES, ET AL. (PUBLIC EMPLOYEES' RETIREMENT SYSTEM) (A-2378-20)

 CHERYL ROOTH VS. BOARD OF TRUSTEES, ET AL. (PUBLIC EMPLOYEES' RETIREMENT SYSTEM) (A-2378-20)

A former public school bus driver appealed from a PERS final agency decision declaring her ineligible to file an accidental disability retirement application when separation from service was based upon an irrevocable resignation, not related to a disability, in accordance with N.J.A.C. 17:1-6.4.

On appeal, the court was required to determine whether a school employee, who irrevocably resigned while an employment grievance was pending, could file an application for ordinary or accidental disability retirement benefits, when the charges underlying the grievance did not relate to a disability. For the reasons stated in the court's opinion, it concluded that , in the first instance, a public school employee's irrevocable resignation from employment rendered the school employee ineligible for ordinary or accidental retirement benefits because the school employee's separation from service was based upon a resolution of the pending grievance, and not an alleged disability.

LOUIS RIPP VS. COUNTY OF HUDSON (DIVISION OF WORKERS' COMPENSATION) (A-2972-20)

 LOUIS RIPP VS. COUNTY OF HUDSON (DIVISION OF WORKERS' COMPENSATION) (A-2972-20)

N.J.S.A. 34:15-28.2(a) permits a workers' compensation judge to enforce a court order, statute or regulation by imposing "an additional assessment not to exceed 25% of moneys due for unreasonable payment delay." In this case, the parties settled petitioner's total disability claim, and, the judge imposed the maximum assessment when the county was sixteen days late in making payment required under the order.

The court reversed, concluding the judge erred as a matter of law because she considered litigation delays occurring prior to the settlement and entry of the order for payment in fashioning the award. The court also concluded the judge mistakenly exercised her discretion regarding the amount of the award, because she imposed the maximum additional assessment for a relatively short delay.