New Jersey Division of Youth and Family Services v. L.L. (A-68-08)

New Jersey Division of Youth and Family Services v.
L.L. (A-68-08) 2-24-10
Pursuant to N.J.S.A. 3B:12A-6(f), the parent seeking
to terminate the kinship legal guardianship has the
burden of proving by clear and convincing evidence
both that the parent has overcome the incapacity or
inability to care for the child that led to the
original guardianship proceedings, and that
termination of kinship legal guardianship is in the
best interest of the child.

COUNTY OF BERGEN EMPLOYEE BENEFIT PLAN AND THE COUNTY OF BERGEN VS. HORIZON BLUE CROSS AND BLUE SHIELD OF NEW JERSEY, ET AL. A-0616-09T1

COUNTY OF BERGEN EMPLOYEE BENEFIT PLAN AND
THE COUNTY OF BERGEN VS. HORIZON BLUE CROSS
AND BLUE SHIELD OF NEW JERSEY, ET AL.
A-0616-09T1 02-24-10
Under the Collateral Source Rule, N.J.S.A. 2A:15-97, a
county with a self-insured benefits plan for its employees is
not entitled to pursue a subrogation action to recover medical
expenses the Plan paid to its insured, a county employee who
brought personal injury claims against third-party tortfeasors.

JOSEPH A. DONELSON AND JOHN SEDDON VS. DUPONT CHAMBERS WORKS AND PAUL KAISER A-2028-08T1

JOSEPH A. DONELSON AND JOHN SEDDON VS.
DUPONT CHAMBERS WORKS AND PAUL KAISER
A-2028-08T1 02-24-10
We extend to a CEPA cause of action the same requirement
that already applies to a plaintiff seeking economic damages
under the LAD, namely a requirement that the plaintiff prove a
constructive discharge or an actual termination of employment
before being entitled to an award of back and front pay.
Because the trial judge erroneously accepted plaintiff's
argument that the jury need not be instructed on constructive
discharge or required to so find, we vacated the $724,000
economic loss award and the $500,000 punitive damages award and
remanded for the entry of judgment in favor of defendant.

CITY OF WILDWOOD V. GARY DEMARZO A-5250-08T1

CITY OF WILDWOOD V. GARY DEMARZO
A-5250-08T1 02-22-10
This appeal concerns the application of the common law
doctrine of incompatibility. The City of Wildwood, a
municipality organized under the Walsh Act, appeals from the
order of the trial court permitting defendant to serve as one of
three elected commissioners comprising the City's governing
body, while on an unpaid leave of absence from his other
municipal position as a Wildwood police officer.
We hold that the trial court erred in permitting defendant
to continue to hold two incompatible public offices in the same
municipality. The court's attempts at counteracting the myriad
of conflicts arising from such incompatibility by restricting
defendant's conduct as a city commissioner impermissibly limited
the statutory authority conferred upon such office by the
Legislature under the Walsh Act.

Alternative Procedure for Dispute Resolution Act FORT LEE SURGERY CENTER, INC. v. PROFORMANCE INSURANCE COMPANY A-1192-08T2

Alternative Procedure for Dispute Resolution Act FORT LEE SURGERY CENTER, INC. v. PROFORMANCE INSURANCE
COMPANY A-1192-08T2 02-22-10
The Alternative Procedure for Dispute Resolution Act
(APDRA), N.J.S.A. 2A:23A-1 to -30, declares that, following a
trial court's judgment, confirming, modifying or correcting an
award, "[t]here shall be no further appeal or review," N.J.S.A.
2A:23A-18(b). Notwithstanding, it has been recognized that
appellate courts retain supervisory jurisdiction to ensure that
trial courts limit their review of arbitration awards to the
circumstances authorized by N.J.S.A. 2A:23A-13. Here, the court
held that so long as a trial court rationally articulates that
correction of an award is required by one of the grounds set
forth in N.J.S.A. 2A:23A-13, appellate courts are not free to
intervene even when believing the trial court was mistaken in
correcting the award. Any broader view of appellate
jurisdiction would eviscerate N.J.S.A. 2A:23A-18(b) and conflict
with the Legislature's expressed desire, in enacting APDRA, to
eliminate appellate review.

Defamation JOHN BERKERY, SR. V. ESTATE OF LYLE STUART, ET. AL. A-5105-07T1

Defamation JOHN BERKERY, SR. V. ESTATE OF LYLE STUART, ET. AL.
A-5105-07T1 02-19-10
In Berkery v. Kinney, 397 N.J. Super. 222 (App. Div. 2007),
certif. denied, 194 N.J. 445 (2008), the court held that plaintiff
failed to establish that statements made by a journalist and her
publisher in newspaper articles about plaintiff's involvement
with the K&A Gang and a book on the subject entitled Confessions
of a Second Story Man: Junior Kripplebauer and the K&A Gang were
made with actual malice.
On this appeal, the court addressed the application of the same
standards to the author and distributors of the same book and
conclude that the actual malice standard applies to the author
and distributors. We further conclude that plaintiff failed to
meet his burden on defendants' motion for summary judgment, and
the motion judge did not err in dismissing the complaint.

NJ SCHOOLS CONSTRUCTION CORP., ET AL. V. DAVID LOPEZ, ET ALS A-4732-07T2 02-19-10

NJ SCHOOLS CONSTRUCTION CORP., ET AL. V. DAVID LOPEZ,
ET ALS A-4732-07T2 02-19-10
In this condemnation action instituted by the former New
Jersey Schools Construction Corporation (now New Jersey Schools
Development Authority), we hold that the value of improvements
to the property, made after the defendant owner received a
"Notice of Interest" (NOI) letter from the agency, are included
in setting just compensation, where there was no proof that
these improvements were constructed for the sole purpose of
enhancing the condemnation award. Also, absent any indicia of
imminent condemnation, the owner who failed to disclose his
receipt of the NOI letter to the local zoning board, before
which variance approvals were pending, did not engage in bad
faith.
As a threshold issue, we held that a consent order of
settlement that expressly reserves the right to appeal an
interlocutory order and provide that the judgment would be
vacated if the interlocutory order were reversed on appeal is
appealable under Rule 2:2-3.