New Jersey Appellate Court Opinion Summaries



05-22-07 State of New Jersey v. Dionte Byrd
-consolidated with-
State of New Jersey v. Freddie Dean, Jr.

At trial, the inculpatory statement of a non-testifying
State witness was admitted through the testimony of a police
detective, the judge having determined that both defendants had
forfeited their Sixth Amendment right of confrontation when they
procured the witness's silence by threatening him with bodily
harm. We reversed the convictions concluding that for the
statement to have been admissible, the statement must also fall
within one of the exceptions to the hearsay rule of preclusion,
or be admissible by other law, N.J.R.E. 802. Our Rules of
Evidence, contrary to the Federal Rules do not contain a
forfeiture-by-wrongdoing hearsay exception permitting admission
of the statement. N.J.R.E. 804(b). Although courts in a
number of jurisdictions without a codified hearsay exception
have adopted the forfeiture-by-wrongdoing doctrine through
judicial decision, we decline to do so determining that such
change in the Rules of Evidence should be accomplished by the
Supreme Court in accordance with the procedure prescribed in
N.J.S.A. 2A:84A-38 and -39, rather than by judicial opinion.

05-21-07 In the Matter of Physical Abuse Concerning A.I.

The Institutional Abuse Investigation Unit of the Division
of Youth and Family Services acted within its authority in
issuing findings that conduct of a teacher was "unjustified and
inappropriate" despite the finding that and the allegation of
child abuse was "unfounded." However, although it can have no
adjudicatory impact, the IAIU letters to appellant and to the
Chief Administrator of the Wayne School District must be amended
to give the teacher more information about the findings and to
make clear that the findings were not binding upon the school
district. The court also held that any letter to a school
district or district administrator related to the conduct of a
teacher must be sent to that teacher.

05-21-07 State of New Jersey v. Ernie Lane

Defendant was charged with participating in an armed
robbery. The court considered, among other things, the
legitimacy of warrantless searches of defendant's backyard and
shed that followed both the police interview of defendant in his
driveway and defendant's accompanying of all but one police
officer to the station house for questioning. The police
officer who remained behind at defendant's home, with the aid of
a flashlight, looked into defendant's backyard through an open
gate in a fence. The officer claimed to have seen a headband
worn by one of the robbers. He then entered the yard, picked up
the headband, claimed that it was "still warm" -- which to him
suggested that it had recently been removed by its wearer -- and
then conducted a protective sweep of the backyard, which led to
the discovery of an automatic rifle in a shed. The trial judge
denied the motion to suppress the headband, based on the plain
view exception, and denied the motion to suppress the rifle on
the protective sweep exception.
The court remanded for further proceedings because the
trial judge's findings did not fully explain numerous factors
applicable to the application of both the plain view exception
and the protective sweep exception. And, as a matter of first
impression in this state, the court expansively interpreted
Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d
276 (1981), and held that a protective sweep may be validly
performed even when an arrest is not performed.

05-21-07 In the Matter of the Adoption of N.J.A.C. 19:3, 19:4,
19:5 and 19:6 by the New Jersey Meadowlands Commission
// New Jersey Builders Association v. New Jersey
Meadowlands, Commission, etc.
A-4174-03T3; A-3107-04T1

Under the New Jersey Constitution as interpreted by the
Mount Laurel cases, the New Jersey Meadowlands Commission is
responsible for affirmative zoning and planning for affordable
housing in its 21,000 acre district. But the Commission should
act in consultation with COAH, and the planning and zoning
should be based on municipal responsibilities for affordable
housing as established by COAH.
Although the Commission's present zoning regulation fails
to adequately address the Commission's constitutional
responsibilities, the regulation is a reasonable interim
response to the recent court-ordered reworking of COAH's third
round rules. The Commission is directed to adopt appropriate
planning and zoning regulations promptly after COAH issues its
amended third round rules, and in the meantime to also determine
whether it should impose a scare resources restraint to preserve
land for affordable housing.
The New Jersey Sports and Exposition Authority is not
responsible under the Constitution for affordable housing within
its portion of the Meadowlands District.
The case against the local entities is remanded to the Law

05-18-07 State of New Jersey v. William J. Burden

Evidence that defendant tried to bribe a witness, two years
after the incident for which he was facing trial, is not part of
the res gestae of the underlying offense, and its admissibility
must be analyzed under N.J.R.E. 404(b). The evidence was
properly admitted to show consciousness of guilt. The trial
court erred in failing to give a tailored limiting instruction
pursuant to State v. Cofield, 127 N.J. 328 (1992), and State v.
Williams, 190 N.J. 114 (2007). However, we concluded the error
was harmless since this evidence was unlikely to lead a jury to
conclude that the defendant was predisposed to commit the
underlying offense, in this case an attempted home invasion, and
the trial court gave a strong general 404(b) charge.

05-15-07 Board of Education of the City of Sea Isle, et al. v.
William J. Kennedy

The question presented is whether the School Ethics Act,
N.J.S.A. 18A:12-21 to -34, specifically N.J.S.A. 18A:12-24j,
creates an exemption to the prohibition on conflicts of interest
in N.J.S.A. 18A:12-2. We answered the question in the negative,
concluding that N.J.S.A. 18A:12-2 and N.J.S.A. 18A:12-24 govern
different situations. N.J.S.A. 18A:12-2 outlines several of the
requirements necessary for an individual to qualify as a local
school board member, whereas N.J.S.A. 18A:12-24 governs the
actions of a qualified board member during his or her term on
the board.

05-15-07 State of New Jersey v. Brett Kearns

The State appeals from a sentence imposed on defendant,
Brett Kearns, asserting the sentence imposed following his
violation of probation was illegal because a mandatory No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2, term of parole
ineligibility was not imposed. Defendant pled guilty to seconddegree
robbery, N.J.S.A. 2C:15-1, and was sentenced to a term of
incarceration with a NERA parole disqualifier. However,
pursuant to the plea agreement after defendant successfully
participated in drug rehabilitation, his sentence was modified
under R. 3:21-10 to a term of five years of probation.
Defendant violated probation and was sentenced to a term of
incarceration that did not include a NERA parole disqualifier.
We held that defendant's sentence was illegal because a
NERA parole disqualifier should have been imposed. Modification
of a sentence under R. 3:21-10 did not alter the nature of
defendant's conviction for robbery, which is an offense that
carries with it a mandatory period of parole ineligibility under
NERA. It matters not whether the term of incarceration is
imposed following a revocation of probation on a NERA mandated
crime. Imposition of a NERA parole disqualifier is mandatory
where a defendant is sentenced to a term of incarceration for an
offense enumerated in NERA.

05-15-07 Sun Coast Merchandise Corporation, et al. v. Myron
Corporation, et al.
A-6148-03T5; A-2965-04T5

Following a lengthy trial in this complex commercial
dispute, the jury rendered a verdict in favor of the seller of
goods. On appeal, the court reversed, concluding, among other
things, that the trial judge mistakenly (1) defined for the jury
when a contract for the sale of goods has been formed, (2)
failed to adequately explain when a warranty against
infringement has been breached, (3) permitted the jury to find
that the buyer had converted goods that had already been
delivered to the buyer but not paid for, instead of leaving the
seller to his breach of contract remedies, and (4) charged the
jury regarding equitable principles that the jury had no right
to apply in this case. As to those legal principles that were
adequately defined in the judge's charge, the judge nevertheless
erred by failing to relate for the jury those principles to the
factual contentions of the parties.

05-14-07 Luz M. Cruz v. Central Jersey Landscaping, Inc. //
Valentyna Hohl v. Insulated Duct & Cable Co. // Audrey
Bush v. Kauffman & Minteer, Inc. // Ruth A. Herzer v.
Classical Cars Nissan, Inc.

We consolidate four appeals that raise a common question
under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142
(the Act). On January 14, 2004, an amendment revising the
formula for calculating death benefits payable to the dependents
of an eligible, deceased worker was approved to "take effect
immediately." L. 2003, c. 253, §§ 1, 4. We conclude that the
revised formula should be applied in pending cases to calculate
death benefits for dates on and after the effective date of the
amendment, January 14, 2004.
Judge Holston is filing a dissent.

05-11-07 State of New Jersey v. James Dorman

In this DWI appeal, we hold that notwithstanding the
Supreme Court's holding in Crawford v. Washington, 541 U.S. 36,
68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), a
breathalyzer machine certificate of operability offered by the
State to meet its burden of proof under State v. Garthe, 145
N.J. 1 (1996), remains admissible as a business record under
N.J.R.E. 803(c)(6).

05-10-07 P.V., by her Guardians Ad Litem, T.V. and L.V. and
T.V. and L.V. v. Camp Jaycee

The Charitable Immunity Act does not provide immunity to a
New Jersey charity for a claim arising out of its alleged
negligence in the operation of a summer camp in Pennsylvania,
which has abolished charitable immunity, because Pennsylvania's
interest in applying its law subjecting charities to the same
liability as profit-making entities outweighs New Jersey's
interest in immunizing New Jersey charities from liability for
alleged tortious conduct in another state.

05-09-07 State of New Jersey v. Hugh F. Breslin

Defendant, Hugh F. Breslin, appeals from a judgment
convicting him of refusal to submit a breath sample, N.J.S.A.
39:4-50.2, and the imposition of a two-year suspension of his
driving privileges as a second offender, N.J.S.A. 39:4-50.4a.
Defendant argued that there was not probable cause for the
police to request he submit a breath sample, and that he should
not be considered a second offender under N.J.S.A. 39:4-50.4a
because his prior conviction for refusal to submit a breath
sample was obtained when the burden of proof required for such a
conviction was the preponderance of the evidence standard.
We preliminarily held that the Law Division judge correctly
found that the police had probable cause to stop defendant and
to believe defendant was driving while under the influence of
intoxicating liquor sufficient to affirm his conviction for
refusal to submit a breath sample, N.J.S.A. 39:4-50.2. As to
defendant's contention that he should not be considered a second
offender under N.J.S.A. 39:4-50.4a, we held that there is no
just reason to nullify a prior refusal conviction based upon a
lesser burden of proof from being considered in determining a
defendant's second-offender status under N.J.S.A. 39:4-50.4a
after a second conviction for the same refusal offense based
upon the criminal standard of proof.

05-09-07 In the Matter of the Application of Robert L. Taylor,
Cape May County Prosecutor, for an Order Directing the
Cape May County Board of Chosen Freeholders to
Appropriate Necessary Funds for the Cape May County
Prosecutor's Office
In this Bigley matter, see In re Application of Bigley, 55
N.J. 53 (1969); N.J.S.A. 2A:158-7, we affirm based on the
opinion of Judge William C. Todd, III, reported at ___ N.J.
Super. ___ (Law Div. 2006).
05-09-07 In the Matter of the Civil Commitment of J.P.

Committee, whose predicate criminal offenses were for
endangering the welfare of a child, determined to be a SVP. The
SVPA's open-ended definition of "sexually violent offense" found
at N.J.S.A. 30:4-27.26(b), must be interpreted in the light of
the associated specific definitions listed in N.J.S.A. 30:4-
27.26(a). When read together, the rational construction of
these two paragraphs shows that the Legislature considered it
appropriate to expand "sexually violent offense" to also include
conduct which demonstrates the elements of the enumerated
sexually violent offenses delineated in subsection (a), even
though the conviction may be for an offense other than those
specifically listed. Conduct underlying offenses to which
committee pled guilty demonstrated elements of sexual assault.

05-08-07 In re Determination by Director of the Division of
Alcoholic Beverage Control that the Xanadu
Redevelopment Project at the Continental Airlines
Arena Site at the Meadowlands Sports Complex Meets All
Jurisdictional Requirements for the Issuance of Any
Necessary Special Concessionaire Permits Pursuant to
N.J.A.C. 13:2-5.2, etc.

An "advisory opinion" of the Director of the Division of
Alcoholic Beverage Control, issued without a hearing and
asserting the availability of special concessionaire permits and
his jurisdiction over them, is not tantamount to final agency
action, i.e., embodying any action substantively adverse to
appellants. It is, therefore, not reviewable at this time, and
the appeal is dismissed. Appellants will be entitled, at an
appropriate time, as objectors to any application for such a
permit, to a hearing on the issues raised.

05-08-07 State of New Jersey v. Franklin Jack Burr, II

In this sexual assault prosecution, we reversed defendant's
conviction because he was precluded from offering expert
evidence that he suffers from Asperger's Disorder, a form of
autism, as an explanation for some of his arguably inappropriate
behavior with the victim, one of his piano students. It is not
necessary that this disorder constitute a "mental disease or
defect" under the diminished capacity statute, N.J.S.A. 2C:4-2,
for the evidence to be admissible; it is sufficient if it has
probative value on an issue in the case.
Here, the prosecutor strongly argued that defendant's
behavior constituted "grooming," as a prelude to a sexual
assault. Hence, the error was not harmless.
We also held that N.J.R.E. 803(c)(27), the so-called
"tender years" exception to the hearsay rule, does not run afoul
of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.
Ed. 2d 177 (2004), and its progeny, insofar as it permits
introduction of evidence of a "testimonial" out of court
statement (here videotaped) of the victim, under circumstances
where the victim testifies in court and is able to be fully
cross-examined on her allegations. Id. at 59 n.9, 124 S. Ct. at
1369 n.9, 158 L. Ed. 2d at 197 n.9.

05-04-07 Ella Jackson, et al. v. HSBC Bank USA, et al.

When a private entity that has purchased tax sale
certificates in other than bulk sales from a municipality
includes charges and other non-monetary burdens not expressly
permitted by the Tax Sale Law, N.J.S.A. 54:5-1 to -137, in
installment payment plan agreements respecting those
certificates, the remedy is reformation and not assessment of
the penalties called for by the Tax Sale Law for redemption in
the ordinary course. In the particular circumstances of this
case, the Consumer Fraud Act is not applicable.

05-04-07 Freddie B. Frazier v. Northern State Prison, et al.

A simple assault under N.J.S.A. 2C:12-1a(3), which consists
of an "attempt[] by physical menace to put another in fear of
imminent serious bodily injury," cannot be a "misdemeanor crime
of domestic violence" within the intent of the federal
Lautenberg Amendment, under which a convicted person is
prohibited from possessing a firearm, because this type of
simple assault does not "[have], as an element, the use or
attempted use of physical force, or the threatened use of a
deadly weapon[.]"

05-01-07 State of New Jersey v. Darren L. Bradshaw
We held that application of the notice of alibi rule, R.
3:12-2, to bar a defendant's own testimony as to his whereabouts
at the time of a crime, because of his failure to comply with
the Rule, unconstitutionally infringes on defendant's state and
federal right to testify, a right emanating from the due process
and compulsory process guarantees. We disagree with contrary
rulings in State v. Francis, 128 N.J. Super. 346 (App. Div.
1974) and State v. Gonzalez, 223 N.J. Super. 377 (App. Div.),
certif. denied, 111 N.J. 589 (1988).
Combined with a highly objectionable summation by the
prosecutor, the error was not harmless. A new trial is

04-30-07 Henry E.Raab, et al. v. Borough of Avalon, et al.

This appeal requires us to determine the applicable
limitation period within which a private party must commence an
action to challenge the taking of private property by a public
entity, as an exercise of its police power, where the public
entity's actions fail to comply with any of the statutory
provisions governing the use of eminent domain.
Applying the definition of inverse condemnation articulated
by our Supreme Court in Greenway Development Co. v. Borough of
Paramus, 163 N.J. 546, 553 (2000), we now hold that the physical
taking of real property involved here constitutes an act of
inverse condemnation.
We further hold that a cause of action against a
governmental defendant to recover the value of the real property
that was taken by inverse condemnation is governed by the
provisions of N.J.S.A. 2A:14-1 -2, and must be filed within six
years from the date of accrual, which is defined as the date the
landowner becomes aware or, through the exercise of reasonable
diligence, should have become aware, that he or she had been
deprived of all reasonably beneficial use of the property.

04-27-07 Township of Dover v. Frank and Sharon Scuorzo //
Director, Division of Taxation v. Lambertville City,
et al. A-2843-05T5; A-3036-05T2
The statutory deduction from real estate taxation granted
to veterans who were in "active service in time of war" and the
exemption from real estate taxation granted to veterans who
suffered a total and permanent disability as a result of such
service are not available to veterans whose only military
service was for training in the National Guard or Reserves.

04-27-07 The Connecticut Indemnity Company v. Richard Podeszwa,
et al. A-5982-04T1

Public policy considerations do not prevent an insurer of a
tractor-truck from excluding from liability coverage all losses
sustained by third parties in an accident with the truck while
it is being used for business purposes. We conclude that so
long as the truck is covered by an additional policy providing
coverage for business use, such exclusionary language in a
"bobtail" policy violates neither the requirements of N.J.S.A.
39:6B-1, nor the public policy of the State.

04-26-07 Bruce Paparone,Inc., et al. v. The State of New
Jersey, et al. A-5127-05T5

In 1997, plaintiffs Sturgis signed a Farmland Preservation
Agreement under the Agriculture Retention and Development Act,
N.J.S.A. 4:1C-11 to -48, agreeing to retain their land in
agricultural production for eight years and to notify the State
if they signed a contract to sell the land. The Agreement gave
the State a "first right and option to purchase the land upon
substantially similar terms and conditions" in the event the
Sturgises signed a contract of sale. In November 2003 the
Sturgises signed a contract to sell the land to plaintiff
Paparone for development but failed to notify the State until
March 1, 2005.
In July 2005 Paparone was granted preliminary major
subdivision approval for seventy-two building lots. The State
offered to purchase the land for six hundred thousand dollars
less than the Sturgises would receive under the contract with
Paparone, but the Sturgises rejected the offer. We reversed the
trial court's grant of summary judgment to plaintiffs,
concluding there was a material question of fact whether the
State's offer was substantially equivalent in value, measured as
of the date the contract was executed, not the later date when
the preliminary major subdivision approval was received

04-26-07 Denise M. Sciarrotta, et al. v. Global Spectrum, et
To the extent warm-ups before a hockey game entail
"heightened vulnerability" to spectators over risks normally
associated with the hockey game experience, the limited duty
rule of Maisonave may not govern.

04-26-07 Raymond G. Perelman v. Nicholas Casiello
We conclude that defendant purchased his property with
knowledge of restrictive covenants in his chain of title, that
the original grantee and grantor intended to burden defendant's
land and benefit plaintiff's, and that the right to enforce
those covenants transferred to plaintiff with ownership of the
property benefited.

04-25-07* New Jersey Division of Youth and Family Services v.
S.F. // In the Matter of the Guardianship of S.L. and
S.L., minors
When a parent continually relapses after participating in
drug treatment, and neglects her children as a result of her
addiction, an award of kinship legal guardianship pursuant to
N.J.S.A. 3B:12A-6(c) is proper. Guided by N.J. Div. of Youth
and Family Services v. C.S., 367 N.J. Super. 76 (App. Div.),
certif. denied, 180 N.J. 456 (2004), we hold that children
should not languish indefinitely waiting for a parent to achieve
stability. [*Approved for Publication date]

04-25-07 New Jersey Manufacturers Insurance Company v. Oscar
If a complaint asserts both a claim for an intentional
tort, which is not covered by defendant's liability insurance
policy, and a claim for negligence, which is covered by the
policy, defendant's insurer may refuse to defend the action, in
which event the insurer is obligated to reimburse its insured
for defense costs and the judgment if it is later determined
that the claim was covered by the policy.

04-25-07 Steven Portnoff v. New Jersey Manufacturers Insurance
The collateral source rule in the No Fault Insurance Act
(N.J.S.A. 39:6A-6) entitles an auto insurer to a setoff against
income continuation benefits (N.J.S.A. 39:6A-4b) for workers'
compensation permanent disability benefits (N.J.S.A. 34:15-12b).

04-25-07 State of New Jersey v. Miriam Miraballes
We find error in the prosecutor's use of a hypothetical
question addressed to the State's expert on non-traditional
religious practices. In that question, in which the State's
entire case was summed up (covering over ten transcript pages),
a description of an individual was used which was a patently
obvious reference to the defendant. To make matters worse, on
redirect examination, the judge, erroneously ruling that the
defense had "opened the door" on cross-examination, allowed the
prosecutor to substitute defendant's actual name into the
hypothetical. The question as asked went far beyond anything
permitted by Odom or Summers and contravened the fundamental
premise of any hypothetical that the defendant's name should not
be used.
Further, the expert was permitted to testify that because
of the secrecy associated with defendant's religion, a
"priestess" of the religion, such as defendant, would never tell
the truth if called to testify at trial.
We found the errors to be not harmless, requiring a new

04-24-07 John T. Paff v. New Jersey Department of Labor
1. Statements made by counsel in briefs are not an
adequate substitute for sworn statements made by parties.
2. Responses by public entities to requests for documents
pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1
to 13, shall be accompanied by sworn statements by agency
personnel setting forth the following information:
(a) the search undertaken to satisfy the request;
(b) the documents found that are responsive to the
(c) the determination of whether the document or any
part thereof is confidential and the source of the
confidential information;
(d) a statement of the agency's document
retention/destruction policy and the last date on
which documents that may have been responsive to the
request were destroyed.
3. The sworn statement shall have appended to it an index
of all documents deemed by the agency to be confidential in
whole or in part, with an accurate description of the documents
deemed confidential. The index is essentially a "privilege log"
that must provide sufficient information "respecting the basis
of the privilege-confidentiality-exception claim vis a vis each
document." Hartz Mountain Indus., Inc. v. N.J. Sports &
Exposition Auth., 369 N.J. Super. 175, 185 (App. Div.), certif.
denied, 182 N.J. 147 (2004). An accurate index is necessary for
substantive review by the requesting party as well as the
reviewing court.
4. After its in camera review, the GRC shall then produce
the following to the requesting party:
(a) the redacted or unredacted documents responsive to
the request;
(b) sworn statement provided by the agency with the
index or "privilege log" appended thereto; and
(c) the minutes of the meeting at which the documents
were reviewed in camera reflecting its explanation for
all redactions or withheld documents.

04-20-07 Kevin J. Azzara v. Township of Waterford
A police officer hired after completing the required police
training course under the "alternate route" authorized by a 1998
amendment to the Police Training Act, N.J.S.A. 52:17B-66 to
-77.6, may be subject to a one-year probationary period
prescribed by a municipal ordinance, during which the officer
can be terminated without cause.

04-19-07 J.P. v. Division of Medical Assistance and Health
Services, et al.
In this case, we construed Federal and State Medicaid
statutes and regulations concerning special needs trusts. We
held that alimony does not constitute income received by a
Medicaid recipient, where the alimony is paid to a special needs
trust created under 42 U.S.C.A. § 1396p(d)(4)(A) pursuant to a
Family Part order as part of divorce proceedings. Therefore,
the State Medicaid program cannot reduce its contribution to the
recipient's nursing home costs by the amount of alimony her
ex-husband pays to the special needs trust.

04-19-07 Mark A. Nouhan, et al. v. Board of Adjustment of the
City of Clifton, et al.
A mercantile license issued by a municipal governing body
cannot be relied upon as authorization for a use of property
that is not permitted by the zoning ordinance. A special
exception granted under the former Municipal Planning Act that
authorizes use of the subject property as a restaurant does not
provide authorization for its current use as a discothequenightclub.

04-19-07 Maria Todaro v. County of Union and Harold Gibson, et
al. A-2077-05T5

A jury found that plaintiff was denied promotion to
Superintendent of Weights and Measures of Union County solely
due to her political affiliation, contrary to 42 U.S.C. § 1983.
The jury awarded compensatory damages and also found that
plaintiff was entitled to an award of punitive damages. The
parties reached a post-verdict settlement that resolved all
issues except plaintiff's claim for equitable relief, which they
agreed to submit to the trial judge. At the hearing, the judge
ordered that plaintiff receive salary and benefits comparable to
what the incumbent Superintendent was receiving at the time of
the hearing. We concluded this remedy failed to make plaintiff
whole. We reversed and remanded for further fact-finding and
reconsideration of the equitable remedies of instatement or,
alternatively, front pay.

04-19-07 State of New Jersey v. Eliezer Martinez
We hold that the principles established in Apprendi,
Blakely and Booker do not require that a jury determine the
amount of restitution to be paid by a defendant convicted of
health claims and Medicaid fraud.

04-18-07 David Murphy, et al. v. Dante Implicito, M.D., et al.
Plaintiff sued his orthopedic surgeons after they placed
cadaver bone in his spine, contrary to his instructions, during
back surgery. Plaintiff had subsequent back surgery which,
among other things, removed the cadaver bone and inserted other
materials. In this opinion, on leave granted, we primarily
examine the scope of damages available to plaintiff if he is
successful in his claims for battery and breach of contract. We
also conclude that in addition to having a viable per quod claim
derivative of her husband's battery claim, plaintiff's wife may
proceed with her per quod claim arising out of her husband's
breach of contract claim because defendants' breach of contract
allegedly resulted in personal injuries to plaintiff.

04-18-07 Carol Bedford, et al. v. Anthony L. Riello, D.C., et
Plaintiff sued the defendant chiropractors alleging their
adjustments of her knee resulted in a torn meniscus and
resultant disability. Prior to trial, plaintiff asked the court
to rule, as a matter of law, that chiropractors are not
permitted in New Jersey to adjust a patient's knee; that
adjustments are limited to a patient's spine. The motion judge
denied the motion and, in a subsequent trial, the jury returned
a verdict for defendants.
We reversed and remanded for a new trial, concluding that
the scope of chiropractic practice in New Jersey constrains a
chiropractor to adjustments of a patient's spine, and does not
permit knee adjustments. Accordingly, the jury should have been
so instructed, and told that if it found that defendants
adjusted plaintiff's knee, that conduct could be considered as
evidence of defendants' deviation from the standard of care.

04-17-07 State of Maine v. Sekap, S.A.Green Cooperative
Cigarette Manufacturing Company, S.A.
In an issue of first impression, we concluded that the
provisions of New Jersey's version of the Uniform Enforcement of
Foreign Judgments Act, specifically N.J.S.A. 2A:49A- 29(a) and
(b), require the judgment debtor to post adequate security
before a stay of enforcement of a properly domesticated foreign
judgment can be entered. The judgment debtor must post the
security even if it is raising a "due process defense," -- in
this case, lack of personal jurisdiction in the rendering state
-- to the domesticated judgment.
However, we also reaffirmed our holding in Sonntag
Reporting Serv. Ltd. v. Ciccarelli, 374 N.J. Super. 533 (App.
Div. 2005), permitting the judgment debtor to raise the "due
process defense" here in New Jersey, without posting security.
We remanded the matter to the trial court for further
proceedings, including "jurisdictional discovery."

04-17-07 Sebastiano Genovese (a/k/a Sam Genovese) v. Mercedes
In a New Jersey divorce action filed in 2005, the trial
court properly valued plaintiff's pension assets using a
marriage end-date other than the date plaintiff filed his New
Jersey complaint, as suggested by Painter v. Painter, 65 N.J.
196, 217 (1974). In this case, plaintiff's remarriage after
entry of a final judgment of divorce in a New York action, which
was subsequently reversed on defendant's appeal, presented
"incontrovertible evidence" pinpointing the time the marriage
"irretrievably broke-down," such that the marital partnership
terminated prior to the filing of the New Jersey complaint for
divorce. Smith v. Smith, 72 N.J. 350, 361-62 (1977). We thus
conclude that the facts of this case present another exception
to the Painter rule.

04-17-07 State of New Jersey v. James Thomas
In these cross-appeals, we are presented with two issues
involving sentencing under the Brimage [*n. 1] Guidelines. The
first Brimage issue raised by the State is whether the trial
court erred by imposing a lower sentence than that negotiated
between the State and defendant pursuant to the Brimage
Guidelines and N.J.S.A. 2C:35-12, based on the court's belief
that the agreement violated defendant's constitutional rights
because it imposed a greater sentence for having invoked his
right to a suppression hearing. We hold that the trial court
erred in imposing the lesser sentence.
The second Brimage issue raised by defendant is whether the
Brimage Guidelines, which were promulgated by the Attorney
General to address negotiated-sentence agreements under N.J.S.A.
2C:35-12, violate the principles of Blakely v. Washington, 542
U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and State
v. Natale, 184 N.J. 458 (2005). We hold that the Brimage
Guidelines do not violate the recent cases affecting sentencing.
[*n. 1 - State v. Brimage, 153 N.J. 1 (1998)].

04-16-07 Prospect Rehabilitation Services, Inc. v. Generoso
Squitieri, Esq. A-2991-05T5
The trial court dismissed plaintiff's legal malpractice
complaint on summary judgment, finding plaintiff had voluntarily
settled the underlying case without exhausting its appeal and
separate active lawsuits and thus was precluded, as a matter of
law, from attempting to recoup the difference in a malpractice
action against its former attorney. We reverse. Plaintiff
never represented the settlement was a fair and satisfactory
resolution of its underlying claims and settled the case after
the trial court denied its motion to amend the complaint to
assert omitted claims that it contends constitute the attorney's
malpractice. There are factual issues as to whether plaintiff
took reasonable steps to avoid the consequences of its former
attorney's alleged negligence, some of which will require expert

04-13-07 Union County Improvement Authority v. Artaki, LLC, et
al. A-6237-05T5
Defendants sought consolidation of two total condemnation
cases involving five contiguous parcels of realty, some of which
were owned by a family controlled LLC and others were owned by
individuals or a combination of family members. Defendants
sought to treat the entirety of the realty as one parcel to
determine its highest and best use. We remanded to the Law
Division for reconsideration to determine whether evidence
surrounding ownership and control of the LLC was held by the
same individuals who individually owned the other parcels of
realty resulting in identity of common beneficial interest over
all parcels per Housing Auth. of City of Newark v. Norfolk
Realty, 71 N.J. 314, 324 (1976). Although Norfolk involved a
partial taking and the fixing of severance damages, its
reasoning regarding the determination of unity of ownership,
when legal title is held in individual and corporate names,
remains applicable in this matter.
Additionally, inextricably intertwined with the
determination of unity of use, is defendants' theory on the
method of valuation, suggesting use of an integrated value to
determine "the highest and best use" of the combined assemblage
of realty, which must be determined by the factfinder.
On remand, the motion judge must review whether one trial
would provide the best means for a jury to determine whether
unity of ownership and unity of use of these contiguous parcels
exists, and that one trial could best accommodate the overlap of
proofs on such considerations as market factors, the potential
combined use, and the method of valuation of the realty
necessary for a determination of just compensation for each
separate parcel. R. 4:73-6; N.J.S.A. 20:3-7(b).

04-13-07 Cheryl Leitner, et al. v. Toms River Regional Schools,
et al. A-3460-05T1
We reverse the trial judge's order denying an extension of
discovery in the absence of a fixed arbitration or trial date.
We outline a number of factors which a trial judge should
consider in determining whether "good cause" has been shown for
an extension of discovery in the absence of a fixed arbitration
or trial date under Best Practices.

04-13-07 Vincent J. Addesa v. Glenine Addesa
The mediator in a private mediation should not have been
deposed, nor his file subject to discovery, in connection with
an attack on a privately mediated property settlement agreement
(PSA) as "unconscionable." Nor should the agreement have been
vacated on the basis of his testimony. However, the motion to
set aside the PSA provided a basis for the plenary hearing which
was ordered, and enough was demonstrated at the hearing to
uphold the finding of unconscionability.

04-13-07 In re Adoption of Amendments and New Regulations at
N.J.A.C. 7:27-27.1, et al. // In re Control and
Prohibition of Mercury Emissions, et al.
A-2445-04T2; A-2476-04T2
We uphold the first-ever regulations of the DEP controlling
mercury emissions from iron and steel melters – the largest
single source of atmospheric mercury emissions in New Jersey –
against a number of challenges, including that DEP exceeded its
statutory authority; acted arbitrarily, unreasonably and without
a legitimate technical basis by requiring use of emission
control technologies that are neither commercially available nor
of proven effectiveness for the forms of mercury generated by
the mini-mills; and violated the rulemaking requirements of the
Administrative Procedure Act (APA), N.J.S.A. 52:14B-23.

04-11-07 Mary K. Kibler, et al. v. Roxbury Board of Education,
et al.
A teacher who is knocked down and injured as the result of
a student-on-student fight cannot pursue a common-law tort
action against her school district and school officials to
recover for her injuries. Such a tort action is barred by the
exclusivity provision of the Workers' Compensation Act, N.J.S.A.
34:15-8. The lawsuit does not fall within the statute's
intentional-wrong exception because it fails the "context" prong
of Laidlow v. Hariton Machinery Co., 170 N.J. 602, 617 (2002).

04-10-07 State of New Jersey v. Robert T. Condon, a/k/a Bob T.
Condon A-1905-05T4
The question presented is whether a defendant charged with
attempted sexual assault may be found guilty under N.J.S.A.
2C:5-1a(1), where the defendant is arrested before completing
the act, which would have constituted the underlying crime. We
hold that he may not be found guilty under that section of the
criminal attempt statute. We also hold that under those facts,
if the defendant has taken a substantial step toward commission
of the underlying crime, the defendant may be found guilty under
N.J.S.A. 2C:5-1a(3).

04-09-07 Endo Surgi Center, P.C. v. Liberty Mutual Insurance
Company A-1387-06T5
An insured who is denied PIP benefits may not maintain a
common law action for breach of good faith against the insurer
because such benefits are statutory in origin, and therefore, an
insured who is wrongfully denied such benefits is entitled to
only the statutory remedy of interest on the benefits plus
attorney's fees.

04-09-07 New Jersey Citizen Action, Inc., et al. v. County of
Bergen, et al. A-4901-05T1
We reverse dismissal of plaintiffs' complaint for failure
to state a cause of action because it alleges, among other
things, that when Bergen County leased operation of the Bergen
Pines County Hospital to a private entity it also provided the
private entity with $33 million in loans to be used by the
private entity as it pleased and for purposes unconnected with
the public end of operating the hospital.

04-09-07 In the Matter of the Civil C ommitment of R.Z.B. SVP-
367-04 A-3060-04T2
With the acquiescence of federal prison officials, the
Attorney General of New Jersey may have a federal inmate, who is
confined in New Jersey and about to complete his federal
sentence, examined by mental health professionals for purposes
of determining if he should be civilly committed under the
Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to
-27.38. We perceive no impediment to federal authorities
choosing to work cooperatively with the State to assure the
safety of the public.

04-05-07 Jennifer Larrison v. Richard Larrison
In this appeal we are required to determine whether a
police disability pension is subject to equitable distribution
without any exemption for that portion of the pension benefit
intended as compensation for the disability. We now reaffirm
the principle we first articulated in Avallone v. Avallone, 275
N.J. Super. 575 (App. Div. 1994). In addressing an equitable
distribution claim against a disability pension, a reviewing
court must determine which portion of the pension represents a
retirement component in which plaintiff would be entitled to
share, and that portion which represents compensation for
defendant's personal disability and personal economic loss.
A trial court should explore, with the assistance of expert
analysis, other options, including limiting the amount subject
to equitable distribution to defendant's contributions to his
pension, which is what he would have received had he left the
police department at the time without a disability. We also
encourage PFRS to consider expressly identifying which portion
of a disability pension is intended to be exclusively

04-05-07 Martin O'Shea v. West Milford Board of Education
Handwritten notes of the Board Secretary, taken during an
executive session of the Board of Education as a memory aid to
assist in preparing the formal typed minutes, need not be
disclosed pursuant to the Open Public Records Act, N.J.S.A.

04-04-07 State of New Jersey v. Michael Lisa
N.J.S.A. 2C:2-1b provides that "liability for commission of
an offense may not be based on an omission unaccompanied by
action unless . . . a duty to perform the omitted act is
otherwise imposed by law. . . ." We held that the legislative
history clearly establishes that the reference to "law" in the
phrase "otherwise imposed by law" was intended to include duties
arising from civil common law. A 1999 amendment to the statute
that referenced several statutes dealing with public safety,
introduced by the phrase, "including but not limited to," did
not evince a legislative intent to limit "law" to statutory law.
In this case, the grand jury was charged that the
applicable civil common law duties could be found in principles
set out in the Restatement (Second) of Torts. We held that
imposition of such duties, which in this case involved the duty
to summon aid for an individual in distress from using drugs
with defendant, did not provide a criminal defendant with
constitutionally adequate notice that his conduct might be the
basis of criminal liability. Our conclusion was buttressed by
the fact that the duties in question had not even been clearly
and definitively adopted in our civil jurisprudence. Because
the instructions clearly had the capacity to affect the grand
jury's consideration of the reckless manslaughter charge, we
affirmed the Law Division order dismissing that count of
defendant's indictment.
Judge Lihotz concurred in part and dissented in part. She
expressed the view that the duty to summon aid for another under
the circumstances presented was sufficiently established in our
common law so as to support the grand jury instructions. She
would reverse the dismissal of the reckless manslaughter count.

04-04-07 Michael Hutnick v. ARI Mutual Insurance Company
We reject the claim of an underinsured motorist (UIM)
insurer that its insured's notification of a settlement offer
from the tortfeasor without expressly relaying its intent to
accept the offer violated its Longworth obligation and deprived
the UIM insurer of its subrogation rights and thus excused the
insurer from UIM liability.
Rather, we find a series of correspondence from the insured
to its UIM carrier effectively gave notice of the acceptability
of the settlement offer, substantially complied with Longworth
and contract notification requirements, and results in no
prejudice to the insurer.

04-03-07 Peter W. Innes v. Maria Jose Carrascosa
In this international child custody dispute, the mother is
currently incarcerated for violating litigant's rights under R.
1:10-3. We found that the courts of New Jersey initially
possessed and maintained throughout the matter, personal and
subject matter jurisdiction. We determined that there is no
obligation under the Hague Convention to recognize the
determinations made by the courts of Spain under principles of
comity or res judicata. Further, we found no basis to afford
comity to the Ecclesiastic Tribunal of the Archbishopric of
Valencia. Lastly, we found no error in the refusal of the trial
court to adjourn the custody trial pending the disposition of
the mother's indictment for interference with child custody or
the court-imposed sanctions.

04-03-07 Patricia McGowan v. Lewis O'Rourke
This case discusses the award of counsel fees as
compensatory damages under the Domestic Violence Act, N.J.S.A.
2C:25-29b(4). In particular, it distinguishes that award from
one made in a matrimonial action under N.J.S.A. 2A:34-23 and
Williams v. Williams, 59 N.J. 229 (1971). Rather than using the
matrimonial factors, we held that if a domestic violence fee is
reasonable and is incurred as a direct result of domestic
violence, then a court, in an exercise of its discretion, may
award fees.

04-03-07 State of New Jersey v. Joseph Bianco
In this appeal, defendant claimed the right to a new trial
because a juror, upon realizing during deliberations that he
knew defendant, failed to make that fact known to the trial
judge and, as a result, participated in the rendering of the
guilty verdict. Despite the juror's failure to immediately
advise of his earlier incorrect answer during voir dire, the
court held that defendant was not entitled to a new trial
because defendant also realized during trial that he and the
juror had been acquainted in the past, and, thus, waived his
right to complain by remaining silent until after the verdict
was rendered.

04-02-07 Helen Mary Devaney v. Francis A. L'Esperance, Jr.
Cohabitation is an essential element to a cause of action
for palimony.

04-02-07 State of New Jersey v. Darren L. Bradshaw
We held that application of the notice of alibi rule, R.
3:12-2, to bar a defendant's own testimony as to his whereabouts
at the time of a crime, because of his failure to comply with
the Rule, unconstitutionally infringes on defendant's state and
federal right to testify, a right emanating from the due process
and compulsory process guarantees. We disagree with contrary
rulings in State v. Francis, 128 N.J. Super. 346 (App. Div.
1974) and State v. Gonzalez, 223 N.J. Super. 377 (App. Div.),
certif. denied, 111 N.J. 589 (1988).
Combined with a highly objectionable summation by the
prosecutor, the error was not harmless. A new trial is

03-29-07 State of New Jersey v. Wilberto Rodriguez
We address the application of self-defense to manslaughter,
concluding that the trial court committed plain error in
instructing the jury that it should consider self-defense in
deliberating on the murder charge but not as to the manslaughter
charges against defendant. We also address the need to charge
the jury as to the defendant's honest but mistaken belief in the
need to use a weapon (here, a pocket knife) to defend himself,
as it relates to charges of possession of a weapon for an
unlawful purpose and unlawful possession of a weapon.

03-28-07 Hunterdon Medical Center v. Township of Readington
The Tax Court denied local property taxation exemptions to
the hospital for portions of an offsite building it owned and
operated as a Wellness Center, Physical Therapy Service and
Pediatric Practice, finding they did not meet the statutory "use
test" to qualify for hospital purposes, and the Pediatric
Practice also failed to meet the statutory "not-for-profit"
requirement. N.J.S.A. 54:4-3.6. These expanded services were
part of HMC's new self-defined and open-ended "continuum of
care" concept aimed at enhancing and improving the general
health status of the local population. The court was unable to
apply the "reasonably necessary" test previously applied to
hospitals providing a core function of 24-hour continuous acute
care because it would produce an inconclusive result so it
articulated and applied a rational, flexible three-component
analytical framework for these types of cases. We agree with
the criteria developed by the Tax Court and their application to
the facts of this case, and affirm. Our endorsement of this
framework is not an abandonment of the reasonably necessary
standard, which should be used in the first instance.

03-27-07 First Atlantic Federal Credit Union v. Charles S.
Perez, et al. A-4645-05T5
We hold that where a check casher cashes a check for an
individual payee without authorization from, or outside the presence
of the corporate co-payee, and the check casher promptly settles with
the corporate co-payee after a Rule 1:4-8 demand, the drawee bank
initially sued by the corporate co-payee is not entitled to
attorney's fees as "expenses" incurred for breach of the UCC's
presentment warranty, N.J.S.A. 12A:4-208(b). Given our forum's
strict adherence to the American rule, we do not interpret the term
"expenses", or the term "other damages" incurred due to bad faith
conduct under N.J.S.A. 12A:4-103(e), as inclusive of attorney's fees.
Moreover, attorney's fees are not available as a traditional element
of damages where the tort of another forces an innocent third party,
here the drawee bank, into litigation, because where, as here, a
check is improperly negotiated, the UCC provides a comprehensive

03-26-07 Shelby Casualty Insurance C ompany v. H.T., N.T., I.T.
and J.T. // P.G. by her g/a/l/ N.I. and N.I. v. I.T.
and J.T. A-5424-05T3
The inferred intent rule, which precludes, as a matter of
law, insurance coverage for a sexual assault committed by an
adult against a young child does not apply to a perpetrator
under fourteen years of age. A factual determination must be
made on a case by case basis to determine the perpetrator's
subjective intent.

03-23-07 State of New Jersey v. Alvin McCann
A municipal court judge who issued a search warrant for
defendant's residence had a prior attorney-client relationship
with defendant and with other members of his family over a
period of many years. The Law Division granted defendant's
motion to suppress, finding that the judge was not the
constitutionally required "neutral and detached magistrate."
We agreed that the judge should not have issued the
warrant, concluding that the appearance of impropriety was
objectively reasonable and required the judge's recusal. The
judge knew or should have known that the person identified in
the warrant application was his former client.
However, we accorded our holding prospective effect only,
concluding that suppression was not warranted in this case where
defendant made no assertion of possible bias on the part of the
judge and our decision established a new rule of law, as
In the future, if a defendant makes a
particularized and credible assertion of facts
which objectively suggest an appearance of
partiality on the part of the judge issuing a
search warrant, based on a prior relationship or
otherwise, a "bright-line" rule invalidating the
search warrant will be applicable.

03-23-07 Estate of Calvert Ostlund, Sr. v. Calvert Ostlund,Jr.,
et al. A-3739-05T1
This case concerns the disposition of a joint bank account
on the death of one of the parties to the account and the right
to certain checks payable to decedent that were deposited to the
joint account after decedent's death. In particular, the case
discusses the Multiple-Party Deposit Account Act, as well as the
case law concerning the disposition of joint bank accounts set
forth in Pascale v. Pascale and In re Estate of Penna.
The case also reviews those provisions of the Uniform
Commercial Code that deal with endorsements and checks payable
and endorsed by a decedent and negotiated after a decedent's
death by the surviving joint tenant on the bank account.

03-22-07 New Jersey Division of Youth and Family Services v.
B.H. // IMO O.F., A.F. and E.F.
This case discusses and resolves the issue of whether
ineffective assistance of counsel is a basis for an appeal in a
child abuse or neglect case.

03-22-07 New Jersey Manufacturers Insurance Company v. Cheryl
M. Varjabedian, et al.
This insurance dispute required us to determine the default
personal injury liability coverage responsibility of an
automobile insurance carrier where the tortfeasor's policy is
subject to retroactive revocation following an otherwise covered
accident. We hold that when faced with liability for damages
sustained by an innocent third-party claimant, a carrier's
default liability on a standard automobile policy subject to
retroactive revocation is equal to the $15,000/$30,000 limits
mandated by AICRA. Thus, we overrule Mannion v. Bell, 380 N.J.
Super. 259 (Law Div. 2005), which held that under AICRA the
default coverage following retroactive revocation was limited to
the PIP benefits and property damage liability coverage mandated
in the alternative basic policy described in N.J.S.A. 39:6A-3.1.
We also noted that with the passage of AICRA, N.J.S.A.
17:28-l.le(2) was amended to provide that automobiles covered by
a basic policy under N.J.S.A. 39:6A-3.1 are not considered
uninsured motor vehicles. Thus, an apparent anomaly was
created, which might leave innocent accident victims, who have
only UM coverage, unprotected if the tortfeasor is insured with
the optional mandated basic policy (which has no personal injury
liability coverage).

03-22-07 State of New Jersey v. Adam J. Kent
Defendant was convicted of DWI following a single-car
rollover accident, and the Law Division affirmed his conviction.
At the municipal trial, the State placed into evidence, among
other proofs, (1) a blood sample certificate pursuant to
N.J.S.A. 2A:62A-11 from a private hospital employee who had
extracted blood from defendant and (2) reports from a State
Police laboratory that had tested the blood samples. The
authors of those hearsay documents did not appear at trial.
We reaffirm our holdings in State v. Renshaw, 390 N.J.
Super. 456 (App. Div. 2007) (regarding blood sample
certificates) and in State v. Berezansky, 385 N.J. Super. 84
(App. Div. 2006) (regarding State Police laboratory reports)
concluding that the hearsay documents are "testimonial" under
Crawford v. Washington, 541 U.S. 36 (2004), and that defendant
was thus deprived of his right of confrontation under the Sixth
However, we also note that, unless our Supreme Court
determines otherwise, the confrontation clause of article I,
paragraph 10 of the New Jersey Constitution does not appear to
independently require such cross-examination beyond current
federal precedents interpreting the Sixth Amendment.
Additionally, we recommend that legislative and/or rule-making
initiatives be pursued to avoid placing undue testimonial
burdens on health care workers and law enforcement personnel who
may create documents relevant to drunk driving prosecutions.
Defendant's DWI conviction is affirmed on independent
grounds, based upon the arresting officer's numerous
observations indicative of defendant's intoxication, and
defendant's admission of drinking.
Judge Stern concurs, addressing issues relating to the
applicability of the right of confrontation to DWI and other
non-indictable prosecutions in the municipal court.

03-21-07 Patricia Morella v. Grant Union/New Jersey Self-
Insurers Guaranty Association
The question presented is whether a petitioner, whose
injury occurs before the employer's insolvency, is required to
file a proof of claim in the employer's bankruptcy proceeding
before qualifying for compensation benefits under N.J.S.A.
34:15-120.18a. We concluded that the statute creates two
classes of claimants, those injured before and those injured
after the employer's insolvency, and the requirement of filing a
proof of claim only applies to the latter.

03-21-07 Gloucester County Improvement Authority v. New Jersey
Department of Environmental Protection
A notice of violation of the Solid Waste Management Act
issued by the Department of Environmental Protection, which
orders the immediate cessation of operation of a solid waste
facility, is an order of abatement within the intent of N.J.S.A.
13:1E-9(c), which the recipient is entitled to an administrative
hearing to challenge.

03-21-07 State of New Jersey v. Hector A. Velasquez

We hold that before authorizing an adverse inference based
upon failure to produce a witness against a defendant in a
criminal trial, a court must evaluate the importance of the
expected testimony in light of the State's burden of persuasion
and any defense asserted. We also hold that unless a defendant
in a criminal case has injected an issue such as an alibi or
asserted a separate defense, the inference should not be
authorized. Finally, we hold that when a court instructs the
jury that it may draw the adverse inference, the court must
explain its limited significance.
We also consider whether a defendant may be sentenced to an
extended term for sexual assault or criminal sexual contact,
pursuant to N.J.S.A. 2C:44-3g, if the indictment does not allege
the facts essential to imposition of that term. We conclude
that the indictment must allege the factual predicates.

03-19-07 Frank Weeden, et al. v. City Council of the City of
Trenton, et al.
An applicant seeking to construct a restaurant with a
drive-thru window applied for a variance from a redevelopment
plan, adopted as overlay zoning, that prohibited drive-in
restaurants. We held that where a municipality adopts a
redevelopment plan as overlay zoning in a zoning district, the
zoning board of adjustment has jurisdiction to grant a variance
from the provisions of the plan. Our opinion specifically does
not address applications from designated redevelopers that have
covenanted with a municipality to carry out a redevelopment

03-16-07 Jacqueline Johnson v. Republic Western Insurance
The motor bus PIP statute mandating passenger medical
expense benefits (MEB) coverage, N.J.S.A. 17:28-1.6, contains no
stated period of limitations, nor references one. The trial
judge applied the principle of legislative oversight and applied
the two-year statute of limitations of the automobile PIP
statute, N.J.S.A. 39:6A-13.1, granting summary judgment to the
bus carrier and dismissing the injured bus passenger's complaint
as untimely filed. We reverse.
We have only found "legislative oversight" and imported a
provision of the automobile PIP statutes into the statutes
governing motor bus MEB by implication in limited situations
(deemer and reimbursement), which resulted in coverage to an
injured passenger. This statute is a remedial one, which should
be construed liberally to advance its purpose of providing MEB
coverage to injured bus passengers. This purpose would be
undermined by imposing on potential claimants an unstated twoyear
limitations period. This is not a "clear case" in which to
invoke the extraordinary principle of amendment by implication
to constrict the availability of this coverage.

03-16-07 Theodore Gregory, et al. v. Borough of Avalon
Planning/Zoning Board, et al.
The interest of justice warranted an enlargement of time to
challenge resolutions of municipal governing body that
authorized owner of motel, restaurant and bar to encroach upon
public beach area and property dedicated to street right-of-way,
because those resolutions involved significant public interests
and were closely related to a resolution of the Board of
Adjustment granting land use approvals required for expansion of

03-16-07 21-23 Seidler Associates, L.L.C., et al. v. City of
Jersey City
We held that (1) assignees of tax sale certificates have
sufficient interest in the property to be entitled to notice of
municipal demolition proceedings, (2) the notice requirements
for the establishment of demolition liens must be strictly
complied with, and (3) despite the invalidation of this
demolition lien for inadequate notice, the city is not permitted
to redeem the tax sale certificates.

03-15-07 Craig A. Uherek v. Shabana Sathe f/k/a Shobhana Uherek
In this appeal, the court held that R. 5:8-6 did not
require that a parent be provided with a transcript of a judge's
in camera interview of a child when the interview was conducted
four years prior to the request and there was no longer a
pending custody dispute.

03-15-07 Shirley Campbell v. Jules Campbell
In this appeal, we hold that pursuant to the Uniform
Interstate Family Support Act (UIFSA), codified at N.J.S.A.
2A:4-30.65 to -30.123, the nonregistering party is precluded
from contesting the registration of a foreign child support
agreement after it has been properly confirmed.
UIFSA requires the nonregistering party seeking to contest
the validity of a registered order to do so at the registration
hearing, which should be requested within twenty days after the
date of mailing or personal service of notice of registration.
N.J.S.A. 2A:4-109. If there has been proper notice to the
nonregistering party, and the order is properly registered and
confirmed, N.J.S.A. 2A:4-111 "precludes further contest of the
order with respect to any matter that could have been asserted
at the time of registration." Ibid.

03-09-07 Amanda Mastondrea v. Occidental Hotels Management
S.A., et al.
We hold that specific personal jurisdiction may be
maintained by New Jersey's courts over a Mexican resort located
in the State of Quintana Roo that conducts, through an agent,
targeted advertising directed to New Jersey residents and
maintains contractual relationships with a travel entity
headquartered in New Jersey of which Liberty Travel is a part.
Although we also affirm the plaintiff's choice of New Jersey as
the forum for her action arising from personal injuries
sustained at the Mexican resort, we declare the law of Quintana
Roo applicable to issues of apportionment of liability and
damages, despite the fact that Quintana Roo applies principles
of strict contributory negligence and limits both the amount of
damages and the manner in which they will be measured.

03-08-07 David Rivard, et al. v. American Home Products, Inc.,
et al.
This appeal construes 42 U.S.C.A. § 300aa-33(5), an
exception to the National Childhood Vaccine Injury Act, which
permits certain actions involving vaccines to bypass the Federal
Vaccine Court and proceed in State Court. We hold that
defendant drug companies can not be considered to have
intentionally added to Orimune, an oral polio vaccine, a monkey
virus, SV40, that allegedly caused a brain tumor and subsequent
death of plaintiffs' daughter. Therefore, the exception did not
pertain and plaintiffs' State complaint, alleging a "vaccine –
related injury or death," must be dismissed and filed in the
Federal "Vaccine Court."

03-08-07 Cresencio Espinal, et al. v. Marino Arias, et al.
In this verbal threshold case, we reversed a jury verdict
in plaintiff's favor. We concluded that the judge unfairly
limited defense counsel's opportunity to qualify his expert
witness, in essence requiring defense counsel to accept
plaintiff's counsel's stipulation as to the witness's
qualifications. We further concluded that the court was
required, but failed, to instruct the jury not to speculate
about the plaintiff's medical expenses, which were paid by PIP,
even though plaintiff was not seeking reimbursement for those
expenses. Finally, we concluded that injuries that were caused
by the accident that did not meet the verbal threshold could be
considered by the jury in deciding plaintiff's noneconomic loss,
as long as at least one of plaintiff's injuries met the

03-08-07 Michael Pizzullo, et al. v. New Jersey Manufacturers
Insurance Company
In this declaratory judgment action, plaintiffs sought a
determination that each of them, as a named insured, was
entitled to $500,000 in underinsured motorist (UIM) benefits,
under a single family auto policy issued by NJM. Plaintiffs'
claim was based upon on an alleged oral assurance made by an NJM
customer service representative ten years before the accident.
NJM argued that this action was barred by the immunity granted
to insurance carriers in N.J.S.A. 17:28-1.9a. After a bench
trial, the Law Division held that NJM was equitably estopped
from denying the UIM coverage sought by plaintiffs.
We reversed, holding that equitable considerations cannot
trump the public policy enunciated by the Legislature in
N.J.S.A. 17:28-1.9.

03-07-07 Madeline Muise, etc. v. GPU, Inc., et al. // George J.
Tzannetakis, et al. v. GPU, Inc., et al.
Plaintiffs appeal the decertification of a putative class
of electrical consumers who experienced electrical outages,
allegedly as a result defendants' negligence in failing to
replace two transformer banks at defendants' Red Bank electrical
substation. In Muise v. GPU, Inc. (Muise II), 371 N.J. Super.
13, 19 (App. Div. 2004), we affirmed decertification of a
broader putative class, but remanded for certification of a more
limited Red Bank class of consumers. We intimated that on
remand, proof of damages as to the Red Bank class, in individual
cases, would likely be feasible through use of customer claim
forms and surveys, statistical analysis, and judicious use of
the tools of discovery. Id. at 64. On remand, the trial court
was not presented with and did not consider such proof of
We reverse decertification of the Red Bank class and find
that plaintiffs should be afforded reasonable time to present
proof of damages as we instructed in Muise II. Only then could
the trial court properly address and decide a motion to
decertify the class. Additionally, we determined that the
decisions in Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234
(2005) and Dabush v. Mercedes-Benz USA, LLC, 378 N.J. Super. 105
(App. Div.), certif. denied, 185 N.J. 265 (2005), are confined
to an interpretation of the term "ascertainable loss" as used in
the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, and as such are
not applicable here.

03-07-07 Christina Hand v. John Hand, Jr.
We affirm the post-judgment Family Part order denying
plaintiff's motion to change custody without holding a plenary
hearing because plaintiff failed to establish a prima facie case
that there was a genuine and substantial factual dispute
regarding the welfare of the children.

03-06-07 Paul F. Ratti v. Department of Corrections
When the evidentiary phase of a hearing has begun but is
adjourned before completion, and the original hearing officer is
unavailable on the date the hearing resumes, the evidentiary
phase of the hearing must begin anew before the replacement
hearing officer. Especially when credibility determinations are
to be made, principles of fundamental fairness require that the
same finder of fact receive all the evidence and make
determinations based on all the proofs.

03-06-07 Robert J. Triffin v. Bank of America, et al.
The Check Cashers Regulatory Act of 1993, N.J.S.A. 17:15A-
30 to -52, does not create a private cause of action nor does
the act's public policy preclude a licensed check casher from
assigning a dishonored check to plaintiff, who had a civil
judgment for fraud entered against him.

03-05-07* Coryell, L.L.C., as Assignee of M.D. Sass Municipal
Finance Partners II, L.P. v. Paul Curry and Wanda D.
In this appeal, we hold that pursuant to Rule 4:64-1(f),
the constitutional requirements of due process in a foreclosure
action do not require notice "most" reasonably calculated to
apprise parties of the foreclosure action. Rather, due process
is satisfied when notice is accomplished in a manner reasonably
calculated, under all of the circumstances, to apprise
interested parties of the foreclosure action and afford them an
opportunity to present their objections. [*Approved for
Publication date]

03-01-07 W.T. v. Division of Medical Assistance and Health
Services, et al.
Director of Division of Medical Assistance and Health
Services upheld imposition of Medicaid transfer penalty based on
unequal equitable distribution to spouse of Medicaid applicant
in an action for divorce from bed and board. Reversed on
grounds that no regulation authorized the decision, which was
also contrary to New Jersey law of equitable distribution.

02-28-07 Glenn T. Cooper, et al. v. Consolidated Rail
The trial court did not abuse its discretion by granting a
motion to dismiss a complaint with prejudice pursuant to Rule
4:23-5(a)(2) when none of the outstanding discovery had been
Although plaintiffs were pro se for a significant portion
of the time following the initial dismissal without prejudice,
that was not an "exceptional circumstance” necessary to avoid
the ultimate sanction of Rule 4:23-5(a)(2), where the judge had
painstakingly explained to plaintiffs their obligation to
provide all outstanding discovery within the next ninety days,
and the consequences of their failure to do so.

02-28-07 Township of Maplewood v. Township of South Orange
Village, et al.
N.J.S.A. 18A:22-5, which defines a necessary majority for
action by the Board of School Estimate, requires both (i) a
majority of the members of the full Board of School Estimate;
and (ii) a majority of the members appointed by the
participating municipalities.

02-27-07 State of New Jersey v. James R. Davis
We hold that there is no absolute requirement in a sexual
assault prosecution involving a child that defendant must arrive
at a physical meeting with the targeted victim for preliminary
"grooming" actions to ripen into an attempted sexual assault.
Prior detailed conversations can constitute a sufficient
indication of defendant's criminal purpose to constitute an
We also suggest that when the prosecution involves othercrimes
evidence and an entrapment defense is advanced the better
practice is for the trial judge to try the defense sequentially
with the same jury to ensure that the jury properly utilizes the
other-crimes evidence.

02-27-07 State of New Jersey v. Benigno Rosario
Defendant who entered a guilty plea to murder in New York
in reliance on offer from prosecutor in New Jersey as to what
offer would be in New Jersey if he enters guilty plea in New
York could enforce New Jersey offer upon his return to New

02-26-07 Woodview Condominium Association, Inc. v. Kevin
Shanahan, et al.
A mortgagee in possession is liable for delinquent
condominium charges, which had accrued against the property's
legal owner, for services and utilities furnished during the
mortgagee's possession and control of the premises.

02-26-07 Carol Tarr v. Bob Ciasulli's Mack Auto Mall, Inc.
We hold that the Punitive Damages Act precludes enhancing a
punitive damage award for general deterrence purposes. In
awarding punitive damages, the jury must focus on an amount
reasonably sufficient to "punish the defendant and deter that
defendant from repeating such conduct." N.J.S.A. 2A:15-5.14(a).
Judge Sapp-Peterson dissents.

02-23-07 Virginia and David Block v. James Plosia, et al.
In a dispute contractually referred to arbitration pursuant
to the New Jersey Arbitration Act of 2003, N.J.S.A. 2A:23B-1 to
-32, a party is entitled to fair and reasonable notice in
advance of the arbitration session that the award may include
extraordinary statutory remedies of treble damages and
attorney's fees.

02-22-07* In the Matter of the Commitment of J.R.
Appellant was involuntary recommitted to a mental health
treatment facility after a recommitment hearing. Based on the
treating psychiatrist's testimony that the appellant may stop
taking his medication and have to be returned to the facility,
the trial court determined that there was clear and convincing
evidence that appellant suffered from a mental illness and was a
danger to himself and to others. We reversed, holding that the
psychiatrist's testimony was inadequate to satisfy the State's
burden of proof by clear and convincing evidence that the
appellant was dangerous to himself, others or property by reason
of mental illness. We emphasized that to justify an involuntary
commitment, it is necessary to show more than the potential for
dangerous conduct and that there must be a substantial risk of
dangerous conduct within the reasonably foreseeable future.
[*Approved for Publication]

02-22-07 In the Matter of the Estate of Howard C. Hope, Sr.,
Pursuant to N.J.S.A. 3B:23-3, a provision of the New Jersey
statutes that govern the administration of estates, distribution
of a decedent's assets in kind is preferable to distribution in
cash. Under the facts here, however, whether to distribute the
assets in kind or sell the property and distribute cash was
within the discretion of the administrator in the first
instance, and ultimately in the discretion of the trial judge.

02-16-07 Glen Reilly v. AAA Mid-Atlantic Insurance Company of
New Jersey
The Commissioner of Banking and Insurance reasonably
construed the term "at-fault accident" to include a one-car,
weather-related accident in which the insured driver was not
negligent. The agency's interpretation was not unreasonable in
light of the purpose of the legislation, N.J.S.A. 17:33B-14,
which authorized the regulation. However, the agency's past
construction of that term has been inconsistent, and its
implementing regulation, N.J.A.C. 11:3-34.3, does not give the
insurance industry or consumers fair notice as to the types of
accidents that would result in assessment of points for
insurability purposes. Therefore the agency must amend the
regulation to define "at-fault" and its application to one-car

02-15-07 Barbara J. Rente, et al. v. Roseann V. Rente
We reverse the Family Part's grant of unsupervised weekly
visitation to the paternal grandparents under the grandparent
visitation statute, N.J.S.A. 9:2-7.1, where the grandparents'
sole proof was that they babysat the toddler on occasion, and
the mother was amenable to supervised visitation, possibly once
a month. The grandparents' proofs were clearly insufficient to
satisfy the high burden of proof of harm required under Moriarty
v. Bradt to rebut the presumption in favor of parental decisionmaking.
The judge made no finding, and the record is devoid of
evidence to support a finding, that visitation was necessary and
the monthly supervised visitation schedule offered by the mother
was inadequate to avoid harm to the child.

02-13-07 Halina Jablonowska, et al. v. David P. Suther, et al.
Here, plaintiff was driving in an automobile with her
mother as passenger. Plaintiff's car was struck by a vehicle
driven by defendant and her mother died of injuries sustained in
the collision. Plaintiff asserted various claims arising from
the accident, including an emotional distress claim pursuant to
Portee v. Jaffee, 84 N.J. 88 (1980).
We affirm the jury's award of damages to plaintiff for the
loss of her mother's companionship, advice and counsel; and the
damage award for the decedent's conscious pain and suffering.
We also affirm the trial judge's dismissal of plaintiff's Portee
claim, concluding that the claim is subject to the limitation on
lawsuit threshold under the Automobile Insurance Cost Reduction
Act (AICRA), and the claim failed as a matter of law because
plaintiff did not present objective clinical evidence to show
that she had sustained a "permanent injury" as that term is
defined in N.J.S.A. 39:6A-8a.

02-09-07 State of new Jersey v. Jean Morales
We held that recently promulgated AOC Directive 21-06,
entitled, "Approved Jury Selection Standards, Including Model
Voir Dire Questions," is binding on all trial courts and its
provisions must be strictly followed. We reversed a proposed
voir dire method that does not comport with the Directive.

02-09-07 City of Passaic v. Charles Shennett, et al.
1. In exercising their powers of eminent domain,
government entities must strictly comply with the rules and
statutes governing condemnation.
2. When a condemnor fails to comply with the
precondemnation procedures set forth in N.J.S.A. 20:3-6, the
Superior Court lacks jurisdiction and must dismiss the complaint
in condemnation.
3. Due process renders a judgment void when a plaintiff
fails to serve a defendant in accordance with Rules 4:4-3, -4
and/or 4:67-3. Failure of due process renders the Superior Court
without jurisdiction over the defendant and without the
authority to enter a judgment affecting the defendant's rights
or property. R. 4:4-4(a); M&D Assocs. v. Mandara, 366 N.J.
Super. 341, 353 (App. Div.), certif. denied, 180 N.J. 151
4. When a condemnor fails to serve a property owner with
notice of the commissioners' hearing in accordance with N.J.S.A.
20:3-12(c), the commissioners' appraisal is void.
5. When a condemnor fails to comply with the
precondemnation requirements of N.J.S.A. 20:3-6; fails to serve
the property owner with process in accordance with the Rules of
Court; and fails to serve the property owner with notice of the
commissioners' hearing, the judgment of condemnation is void –
irrespective of the sale of the subject property to a third

02-09-07 State of New Jersey v. Robert C. Renshaw
We hold that the admission in evidence of the Uniform
Certification for Bodily Specimens Taken in a Medically
Acceptable Manner, pursuant to N.J.S.A. 2A:62A-11, without the
opportunity for cross-examination of the nurse who drew the
blood, and over the objection of defendant, runs afoul of the
right of confrontation protected both by the United States and
the New Jersey Constitutions.

02-08-07 Jan Marshak v. Lawrence Weser
Under the Uniform Interstate Family Support Act (UIFSA),
N.J.S.A. 2A:4-30.65 to -30.123, the law of the issuing state
controls the duration of a child support obligation entered in
that state. Pennsylvania law does not require a parent to pay
college expenses for a child who has reached age eighteen.
Accordingly, even though both parents now live in New Jersey,
UIFSA precluded a New Jersey court from modifying a support
order, originally issued in Pennsylvania, to require defendant
to pay for his eighteen-year old child's college education.

02-08-07 Campo Jersey, Inc. v. Director, Division of Taxation
Bubbles, Inc. etc. v. Director, Division of Taxation
A-5384-04T5; A-6078-04T5
In a case of first impression, we affirmed the Tax Court,
22 N.J. Tax 251 (2005), and upheld sales tax assessments on food
items sold by certain vendors operating kiosks and free standing
carts at the Meadowlands Sports Complex and Quakerbridge Mall,
finding reasonable and not ultra vires the Director's definition
of "premises" to include the total space of the facilities that
customers had to enter to make their food purchases.

02-08-07 In re Application of Virtua-West Jersey Hospital
Voorhees for a Certificate of Need
The Commissioner of the Department of Health and Senior
Services has the discretion to review and grant a certificate of
need (CN) application from a hospital for a change of authorized
service designation even though the change of designation was
not included in the expressed scope of the CN call issued by
Department, but was germane to it.

02-06-07 State of New Jersey vs. Michael King
The fact that a defense witness testified in shackles, or
at least in handcuffs, cannot be deemed "harmless error" in a
case in which the identification testimony introduced against
defendant was not overwhelming nor strong, and the charge should
have been more fact sensitive on "suggestiveness." State v.
Artwell, 177 N.J. 526 (2003), was prospective only with respect
to testimony of a defense witness while dressed in "prison
garb," but the prohibition to testifying while shackled (in the
absence of a necessity) was not made prospective only.

02-05-07 Rutgers Casualty Insurance Company v. Robert LaCroix,
et al. A-4006-05T2
The public policy that requires an insurer to pay innocent
third parties, injured in automobile accidents, the minimum
personal injury protection coverage provided by N.J.S.A. 39:6A-4
likewise applies to an innocent child of an insured, residing in
the insured's household who is unaware of the insured's material
misrepresentations in his insurance application, and who is a
licensed driver injured in an automobile accident while driving
the insured's car with his permission.
02-05-07 State of New Jersey v. Charles A. Watkins
In this appeal from a denial of defendant's appeal of his
rejection from pre-trial intervention (PTI), we addressed the
meaning of PTI Guideline 3(i)(2), which directs consideration of
whether the crime was "part of a continuing criminal business or
enterprise." Reviewing the prior cases that have addressed this
Guideline, we conclude that the Prosecutor and the reviewing
judge erroneously applied Guideline 3(i)(2) to the facts of this
case which involved improper receipt of unemployment checks over
a four-month period. Defendant's conduct did not possess the
characteristics of a "business" or "enterprise" nor did it
persist for a long enough period to be deemed "continuing," as
that phrase has been applied in earlier cases.
As a result, we remanded to the Prosecutor for
reconsideration of defendant's application without consideration
of Guideline 3(i)(2).

02-05-07 Ellen J. Johnson v. David L. Johnson, et al.
A Family Court judge appointed an accountant to evaluate
and to verify the income derived by defendant-husband from his
various business interests. In an action by the accountant
against defendant for payment of defendant's share of the fee,
we held that the attorney for the accountant is not entitled to
attorneys' fees pursuant to Rule 4:42-9(a)(1) and Rule 5:3-5(c).

02-05-07 Taijuana M. Hale v. Jacqualine L. Farrakhan
If a tenant is forced to vacate a residential unit based on
the landlord's announced intent to personally occupy the unit,
and the landlord fails to occupy the unit, the landlord has the
burden of proving in a wrongful eviction action brought by the
tenant that the landlord's failure to personally occupy the unit
was not arbitrary.

02-05-07 State of New Jersey v. James Hemphill
Pursuant to R. 3:21-8, a defendant is entitled to receive
credit for time spent in custody, on this charge, in the United
Kingdom, while pending extradition to New Jersey.

02-05-07 State of New Jersey v. David Amodio
In this matter, defendant was convicted of
passion/provocation manslaughter, felony murder, arson and other
offenses arising from the death of his girlfriend and her son in
a fire at defendant's home. We hold that: 1) evidence obtained
by the police and other officials in the fire-damaged home was
properly seized without a warrant because the evidence was found
during an investigation into the cause and origin of the fire,
which was conducted within a reasonable time after the fire had
been extinguished; and 2) the warrantless seizure of defendant's
clothes was permissible because those garments had been removed
from defendant in order to provide emergency medical assistance.

02-02-07 State of New Jersey v. Adam Goodmann
We hold that a customer who, following a billing dispute
with Walgreens regarding the cost of photoprocessing, takes the
finished photographs without paying for them, but gives his name
and address to the store manager, cannot be found guilty of
shoplifting. Photoprocessing constitutes a service, and
therefore, Walgreens was not acting as a "merchant" when it
contracted to develop the customer's film. Further, the
photographs that Walgreens produced were not "merchandise,"
because they lacked value to anyone other the customer and were
not salable.
We also hold that a customer, engaged in a billing dispute,
who left contact information so that the dispute could be
settled, cannot be found to have "purposely" taken possession of
the "merchandise" with the intention of converting the same to
his own use without "paying to the merchant the full retail
value thereof."

02-02-07 Yilmaz, Inc. v. Director, Division of Taxation
In a reported opinion, the Tax Court judge applied the
standard utilized in local property tax cases, Pantasote Co. v.
City of Passaic, 100 N.J. 408, 413 (1985), i.e., cogent evidence
that is "definite, positive and certain in quality and quantity
to overcome the presumption" of correctness of the assessment,
to a taxpayer who challenged a state tax assessment based on an
audit of a cash business, involving only factual issues and the
methods employed by the Director. Yilmaz, Inc. v. Dir., Div. of
Taxation, 22 N.J. Tax (Tax 2005). We expressly endorse this

02-02-07 Jason Cutler v. Theodore Dorn, et al.
The evidence in support of plaintiff's hostile work
environment LAD claim based on religion or ancestry was
insufficient for submission to the jury, and judgment nov should
have been granted. The remark that precipitated plaintiff's
complaint, although very offensive, was not made by a supervisor
or directed at plaintiff, and was not, by itself, sufficiently
egregious to be actionable. Nor was an actionable claim
established by evidence of additional comments and actions to
which plaintiff was subjected over several years. The
additional incidents were sporadic, plaintiff never objected or
complained, and they were part of the give-and-take among coworkers,
in which plaintiff willingly participated.

02-01-07 David Kwiatkowski v. Joseph Gruber, et al.
An order dismissing a complaint without prejudice pursuant
to R. 4:23-5(a)(1) is not a final order that can be appealed as
of right. And when, as here, plaintiff's complaint is dismissed
without prejudice for failure to comply with an ordered medical
examination for an adversary, the rule implicitly requires that
plaintiff's counsel ask defense counsel to schedule another
medical examination and that defense counsel must cooperate in a
reasonable manner. After the examination has been promptly
conducted, plaintiff may then move for reinstatement of the
complaint. Appeal dismissed.

02-01-07 Eric A. Kranz v. Arthur H. Tiger, M.D., et al.
In a personal injury negligence case, negligent
miscommunications between plaintiff's physician and plaintiff's
attorney, which result in plaintiff accepting a settlement
solely because his attorney wrongly informed him that his key
medical witness was unavailable to testify in court, may provide
grounds for professional malpractice actions against the
physician and the attorney. Expert testimony is not required
when the allegation is simply that the professionals
communicated negligently.
When plaintiff chooses to try the malpractice case by the
method known as a "suit-within-a-suit," evidence of settlement
negotiations and evidence of the reasonableness of the
settlement are inadmissible. Although the jury needs to know
that the underlying action ended with a settlement, it should
not be told anything about the amount or reasonableness of the
settlement. If the verdict exceeds the settlement, the
settlement amount will be deducted from the verdict before
judgment is entered.

01-30-07* Dorothy Clark v. UMDNJ
In this malpractice appeal, we held that the proper
standard of care for an oral and maxillofacial surgeon in his
second year of residency and a medical school graduate in her
fourth year of residency is that of the average general
practitioner. [*Approved for Publication date]

01-29-07 Leo Facto, et al. v. Snuffy Pantagis, et al.
A power failure at the beginning of a wedding reception
relieved banquet hall of its contractual obligation to provide
reception because the lack of lighting and shutdown of the air
conditioning system made continuation of performance
impracticable. However, the banquet hall's inability to perform
the contract for the wedding reception also relieved the bride
and groom of their obligation to pay the contract price.

01-29-07 Sharon K. Smith vs. State of New Jersey, et al.
In this appeal, the court rejected the novel contention
that a public employee may be eligible for accidental disability
pension benefits, pursuant to N.J.S.A. 43:15A-43, when the
traumatic event that caused the disability occurred when the
public employee was temporarily employed prior to becoming a
member of the Public Employees' Retirement System.

01-29-07 In the Matter of the Civil Commitment of T.J.N. SVP-
351-03 A-4857-03T2
Temporary commitment under Sexually Violent Predator Act
(SVPA), N.J.S.A. 30:4-27.28, not vacated after subsequent
initial commitment hearing where one of two certificates
necessary for temporary commitment was inadequate but State
sustained its burden at the subsequent adversarial commitment
hearing. The State under the SVPA must present only one
psychiatrist at the adversarial hearing, provided that he or she
is a member of the "treatment team" who examined the committee
within five days of the hearing, but even though the
constitutional confrontation clauses do not apply, crossexamination
of the expert(s) relied upon by the State at the
hearing is required. Included hearsay in reports of the State's
experts, and fact one State's expert did not interview
appellant, do not require reversal of initial commitment.

01-26-07 Psak, Graziano, Piasecki & Whitelaw v. Fleet National
Bank, et al. A-6785-04T1
Plaintiff law firm filed a lawsuit nearly six years after
the check drawn on its attorney trust account with Fleet was
negotiated, to recover the $6000 overage paid by Fleet to GE
Capital to pay off a mortgage in a real estate closing. We held
that plaintiff's common law negligence action against both Fleet
and GE Capital, ordinarily governed by the six-year statute of
limitations of N.J.S.A. 2A:14-1, actually is one to enforce its
rights in matters concerning negotiable instruments and arising
under Article IV of the Uniform Commercial Code (UCC),
particularly N.J.S.A. 12A:4-401, and as such is governed by the
UCC's three-year statute of limitations in N.J.S.A. 12A:4-111.
Further, just as with actions against banks for conversion
of negotiable instruments, see New Jersey Lawyers' Fund For
Check Protection v. Pace, 186 N.J. 123 (2006), we declined to
apply the "time of discovery" rule to the instant action,
finding no reason in law or policy to extend any greater
protection in this instance to plaintiff, whose claim is
grounded only in negligence.
But even if available to toll the statute of limitations,
the discovery rule would not inure to plaintiff's benefit here
because plaintiff was in possession of the canceled check and
the bank statement showing the incorrect amount debited from its
IOLTA account shortly after the instrument was negotiated, and
because plaintiff was under a mandatory duty imposed by court
rule to monitor its attorney trust account on a regular basis.

01-25-07 In re Adoption of Uniform Housing Affordability
Controls by the New Jersey Housing and Mortgage
Finance Agency A-2678-04T3
In this appeal, we have concluded that the regulation
enacted by the New Jersey Housing and Mortgage Finance Agency
that establishes affordability ranges for the provision of
housing pursuant to the Mount Laurel doctrine, which regulation
has been incorporated by the New Jersey Council on Affordable
Housing (COAH) into its third round regulations, is not
inconsistent with the Agency's legislative mandate, nor is it
arbitrary, capricious or unreasonable. This opinion is being
issued in conjunction with a companion opinion, In re the
Adoption of N.J.A.C. 5:94 and 5:95 by the N.J. Council on
Affordable Hous., in which we address challenges to COAH's
adoption of its third round regulations.

01-25-07 In the Matter of the Adoption of N.J.A.C. 5:94 and
5:95 by the New Jersey Council on Affordable Housing,
etc. A-1960/2665/2674/2706-04T3
In this appeal, we address a multifaceted challenge to the
validity of the substantive rules of the Council on Affordable
Housing (COAH) for the third round that calculate affordable
housing needs from 1999 to 2014 and establish criteria for
satisfaction of the need between 2004 and 2014.
In the course of this opinion, we have affirmed COAH's
methodology for calculating a municipality's rehabilitation
share, N.J.A.C. 5:94-2.1(b); its decision to no longer
reallocate present need, N.J.A.C. 5:94, Appendix A at 94-35; its
continued use of regional contribution agreements, N.J.A.C.
5:94-5.1 to -5.5; and its regulations awarding credits, bonus
credits and vacant land adjustments, N.J.A.C. 5:94-4.20(d),
-4.16(a), -4.22, -3.4(a)(1). We have also declared that the
agency implementation of its decision to subtract tax credit
developments from statewide and regional housing need, N.J.A.C.
5:94, Appendix A at 94-44, by a so-called policy change must be
addressed through rule making.
We have also held that COAH's use of filtering in
calculating statewide and regional housing need, N.J.A.C. 5:94,
Appendix A at 94-42, is unsupported by the record, thus
requiring a reconsideration of the need calculation. We have
also invalidated the growth share rules to the extent that the
methodology relies on unissued data from the State Planning
Commission, permits voluntary compliance, and excludes job
growth and housing growth resulting from rehabilitation and
redevelopment. We have also invalidated the regulations that
permit municipalities to provide affordable housing without
offsetting benefits, and invalidated the regulation, N.J.A.C.
5:94-4.19, that permits municipalities to age restrict fifty
percent of affordable housing to be built in a municipality.
We have directed COAH to promulgate regulations in
conformance with the Mount Laurel doctrine and the Fair Housing
Act within six months.

01-24-07 Housing and Redevelopment Authority of the Township of
Franklin v. Mary Mayo A-3630-05T3
This appeal involved a breach of a public housing lease
term limiting residency to authorized tenants. In the decision,
we disapprove of Jijon v. Custadio, 25 N.J. Super. 370 (Law Div.
1991) and hold that the tenant may not cure such a breach solely
by having the unauthorized residents vacate the public housing
two days before trial for possession and months after the
Housing Authority had timely served the tenant with notices to
cease and quit and demand for possession and termination of the
lease. Instead, any cure must address and remediate the lengthy
period of unauthorized lodging.

01-24-07 Jayesh Ghandi v. Julia Cespedes, et al.
We held in this matter that a plaintiff's motion to restore
to the trial calendar under Rule 1:13-7(a) should be viewed with
great liberality, absent a finding of fault by the plaintiff and
prejudice to the defendant.

01-24-07 Samuel L. Doyal v. New Jersey Department of
Environmental Protection A-4839-04T1
The Freshwater Wetlands Protection Act does not authorize
issuance of a general permit for filling or other regulated
activity in a freshwater wetland that is part of a surface water
tributary system, regardless of whether the system is non-tidal
or tidal.

01-24-07 New Jersey Builders Association v. New Jersey Council
on Affordable Housing A-4531-04T5
Plaintiff New Jersey Builders Association (NJBA) appeals
from the denial of its application for attorney's fees pursuant
to N.J.S.A. 47:1A-6, a provision of the Open Public Records Act
(OPRA), N.J.S.A. 47:1A-1 to -13. Relying upon N.J.S.A. 47:1A-
5(i), NJBA claims that it was entitled to fees because New
Jersey Council on Affordable Housing (COAH), Department of
Community Affairs, did not produce the information it demanded
within seven business days.
We hold that NJBA was not entitled to fees. Because NJBA's
OPRA request did not specifically identify the documents it
sought, as required by N.J.S.A. 47:1A-5(f), OPRA's sevenbusiness-
day deadline did not apply, N.J.S.A. 47:1A-5(i).
Moreover, NJBA's request required COAH to identify records,
survey COAH employees, gather responsive information and produce
new documents. Because OPRA does not require an agency to
perform such tasks and because NJBA needed more than ten
business days to review the materials COAH produced, we hold
that COAH established that its conduct was authorized by
N.J.S.A. 47:1A-5(g), which permits an agency confronted with a
request that will substantially disrupt its operations to offer
a reasonable solution that accommodates the competing interests.

01-23-07 Monogram Credit Card Bank of Georgia v. Robert c.
Tennesen, et al. A-6267-04T1
In this action brought under the Consumer Fraud Act (CFA),
we determine that the delivery of non-conforming household
furniture, and the seller's subsequent failure to provide the
consumer with the options set forth in N.J.A.C. 13:45A-5.1, is a
per se violation of the statute.
We interpret this regulatory scheme which has been
significantly amended over the years so as to limit our prior
holding in DiNicola v. Watchung Furniture's Country Manor, 232
N.J. Super. 69 (App. Div.), certif. denied, 117 N.J. 126 (1989)
to its facts and its place in time.

01-23-07 Finderne Heights Condominium Association, Inc. v. Paul
Rabinowitz, et al. A-6135-04T1
This opinion holds that the alternative dispute resolution
requirements in the Condominium Act and the Planned Real Estate
Development Full Disclosure Act do not prohibit a unit owner or
a condominium association from initiating litigation without
first submitting the dispute to alternative dispute resolution,
if there are compelling circumstances.

01-23-07 The Jersey Division of Youth and Family Services v.
F.H. and A.H. // IMO the Guardianship of H.H., K.H.
and Y.H. A-3477-04T4; A-3846-04T4 (consolidated)
These are two consolidated termination of parental rights
cases involving defendants' three biological children. Both
parents argue that DYFS did not prove each of the four statutory
elements of N.J.S.A. 30:4C-15.1(a) by clear and convincing
evidence. The father individually argues that DYFS failed to
consider: (1) placing the children with his brother, as an
alternative to termination; and (2) that the termination of
Muslim parents' parental rights, followed by a Christian
adoption, undermines the children's cultural and religious
We hold that the Division met its burden of proof that the
parents were unwilling or unable to provide a safe and secure
environment for the middle child. With respect to the eldest
child, there was insufficient evidence to support the trial
court's holding that the parents caused or were otherwise
responsible for causing significant physical or emotional
injuries to her. Finally, with respect to the youngest child,
there was no evidence showing that the parents caused or were
otherwise responsible for causing any physical or emotional
injuries to him.
In order to sustain a judgment terminating a defendant's
parental rights with respect to children who have not been the
direct recipient of abuse or neglect, the trial court must find,
by clear and convincing evidence, that DYFS has demonstrated
that the parent's failure to adequately respond to and/or
prevent the abuse endured by one child, exposes any similarly
situated sibling to a high probability of being abused or
In this light, we (1) affirm the judgment terminating
defendants' parental rights with respect to the middle child;
and (2) reverse the judgment terminating defendants' parental
rights with respect to the other two siblings. We remand the
matter to the Family Part to explore, at a permanency hearing,
DYFS' capability to provide defendants with the services and
supervision necessary to insure the health, welfare, and safety
of these two children.
We are satisfied that a precipitous reunification of these
two children with their parents is not warranted. Rather, a
carefully monitored, closely supervised, gradual increase in
both the frequency and scope of the parents' contacts with these
two children will provide the best means to achieve the goal of
returning the children to their parents, without compromising
their safety. If, after the passage of sufficient time to
assess the efficacy of these services, the trial court is
satisfied that reunification is no longer legally viable, DYFS
may re-file its Guardianship Petition.
Finally, we reject defendants' arguments that DYFS' actions
undermined the children's religious and cultural rights to be
raised as Muslims. DYFS' mission, and its driving concern in
these type of cases, is first and foremost the physical and
emotional well-being of the children. Although the continuation
of a child's cultural and religious traditions may be laudatory,
it cannot guide a decision to remove or not to remove; to
terminate or not to terminate; or to pass over an otherwise
suitable foster placement.

01-22-07 State of New Jersey v. Shirley Reid
We held that an internet subscriber has an expectation of
privacy in information on file with the internet provider
identifying her as the user associated with an anonymous "screen
name." Since the police obtained that identifying information
by means of an invalid subpoena, issued by a municipal court
administrator and returnable on the date of issuance, the order
suppressing the evidence obtained from the internet provider was

01-17-07 In the Matter of Jacob Micheletti, et al
Speech and occupational therapy for autistic child was
excluded from coverage under the State Health Benefits Program
by a final administrative decision of the State Health Benefits
Commission. Held that the exclusion is contrary to the Mental
Health Parity Act, the purpose and spirit of the State Health
Benefits Program and the public policy of this State for the
protection and nurturing of children.
This decision is a companion to the decision delivered by
Judge Payne in Markiewicz v. State Health Benefits Program, ___
N.J. Super. ___ (App. Div. 2007) that has been released

01-17-07 Walter Markiewicz v. State Health Benefits Commission
Occupational, physical and speech therapy constitute the
primary, medically recognized treatments for persons suffering
from autism and pervasive developmental disorder. Nonetheless,
in a final administrative decision, the State Health Benefits
Commission affirmed the exclusion of those treatments from
coverage under the New Jersey State Health Benefits Plan. We
reverse that determination and conclude that the contractual
exclusion, as applied, violates New Jersey's Mental Health
Parity Act.
A similar conclusion has been reached by another panel of
this court, as expressed in a decision delivered by Judge
Collester that has been released simultaneously with this one.

01-16-07 Phyllis Sinclair, et al. v. Merck & Co., Inc.
We reversed as premature the trial court's dismissal on the
pleadings of plaintiffs' proposed class action for medical
monitoring for undiagnosed myocardial infarctions allegedly
resulting from the use of Vioxx. We remanded the matter to
afford plaintiffs the opportunity to demonstrate exposure to the
drug by evidence of presently existing physical injury or other
means, and required that a determination of the viability of
their claims, as a matter of law, take into account all of the
factors set forth by the Supreme Court in Ayers v. Twp. of
Jackson, 106 N.J. 557, 606 (1987).

01-12-07 Kimberly Britten v. Liberty Mutual Insurance Company
In this appeal, we determined that plaintiff, who was
entitled to recover PIP benefits under her personal auto
insurance policy, was precluded from also recovering PIP
benefits under her mother's auto insurance policy, irrespective
of plaintiff's status as a resident member of her mother's
household. We found that the anti-stacking provisions of
N.J.S.A. 39:6A-4.2 and the statutory exclusions contained in
N.J.S.A. 39:6A-7 bar plaintiff from recovering PIP benefits
under both policies.

01-11-07 State of New Jersey v. Malvern L. Lewis
Defendant was found guilty of the murder of one person,
aggravated assault and related weapons offenses with respect to
another person, and contempt for violation of a domestic
violence restraining order. The trial judge erred in failing to
sever the contempt charge and in allowing the restraining order
into evidence as to the other crimes. Because defendant's state
of mind was at issue with respect to the aggravated assault and
weapons offenses, the errors were prejudicial and required
reversal of those convictions. But the errors were not capable
of producing an unjust result with respect to the murder
conviction because the homicide was admitted, self-defense and
heat-of-passion manslaughter were not in the case, and no
reasonable jury could have found that the homicide constituted
aggravated manslaughter or manslaughter rather than murder. The
errors were also not capable of affecting the contempt
conviction, which rested on admitted facts unrelated to
defendant's state of mind when he attacked the second victim.

01-10-07 State of New Jersey v. David Liviaz
-consolidated with-
State of New Jersey v. Dennis J. Claros-Benitez
Although PTI may not be denied solely because a defendant
is an illegal alien, it can be a relevant factor, and in both of
these cases defendant's illegal status plus other facts
justified the prosecutor's rejection of defendant's application
for admission to the PTI program. Judgments of the trial court
therefore reversed.

01-10-07 In the Matter of the Ownership of Renewable Energy
Certificates ("RECs") Under The Electric Discount and
Energy Competition Act, As It Pertains to Non-Utility
Generators and the Board's Renewable Energy Portfolio
The Board of Public Utilities decided that for existing
long-term contracts involving purchase of electricity produced
with renewable energy, the initial owner of the Board-created
Renewable Energy Certificates, or "RECs," would be the
purchasing utility rather that the selling renewable energy
producer. Since the decision violates neither federal nor state
law, is fair to the parties, and fairly benefits retail
consumers, we affirmed.

01-09-07 Nancy Giordano v. John Giordano
In this appeal, the court rejected an argument that federal
law, once triggered, preempts state law or otherwise prohibits a
state court from compelling a delinquent parent to pay child
support arrearages at a rate greater than that imposed by a
federal court in ordering restitution pursuant to the Child
Support Recovery Act, 18 U.S.C.A. § 228.

01-08-07 William Grubbs, et al. v. Lenore Slothower, et al.
We reverse the trial judge's reversal of the zoning board
of adjustment's denial of plaintiff's major subdivision and
variance application. We remand the matter to the zoning board
of adjustment to apply the appropriate standard of review to
plaintiffs' request for a density variance pursuant to N.J.S.A.
40:55-70d(5). We determine for the first time that the
appropriate standard of review for a density variance involving
a permitted use is the more relaxed standard enunciated by the
Supreme Court in Coventry Square, Inc. v. Westwood Zoning Bd. of
Adjustment, 138 N.J. 285 (1994) and echoed in our prior opinion
in Randolph Town Ctr. Assocs., L.P. v. Twp. of Randolph, 324
N.J. Super. 412 (App. Div. 1999).

01-04-07 State of New Jersey v. Louis Toscano, et al.
Safety National Casualty Corporation posted a bail bond in
the amount of $40,000 for defendant Louis Toscano and appeals
from an order that remits $8000 and forfeits $32,000 of that
bond. The warrant that was issued upon Toscano's failure to
appear was executed two days before Safety had notice of his
non-appearance. We conclude that this forfeiture is excessive
when considered under the remittitur guidelines issued by the
Administrative Director of the Courts and remand for
reconsideration. See Directive #13-04, Revision to Forms and
Procedures Governing Bail and Bail Forfeitures, Attachment F
(2004). When a surety cannot qualify for "partial remission"
because it did not engage in "immediate substantial efforts to
recapture," as we have construed that phrase in State v.
Ruccatano, 388 N.J. Super. 620 (App. Div. 2006), the "policy
concerns" and "factors" that inform decisions under the
remittitur guidelines require consideration of a "starting
point" between those for "minimal remission" and "partial


12-29-06* I.L. v. New Jersey Department of Human Services,
Division of Medical Assistance and Health Services
I.L. owned three life insurance policies having a total
surrender value of $5,913. In light of I.L.'s dementia, these
policies were not "accessible" to her for purposes of N.J.A.C.
10:71-4.4(b)(6), and she was eligible to participate in the
Medicaid Only program. [*Approved for Publication date]

12-27-06 New Jersey Citizens United Reciprocal Exchange v.
American International Insurance Company of New Jersey
Plaintiff filed a declaratory judgment action seeking a
declaration that defendant was obligated to reimburse plaintiff
for 50% of the underinsured motorist (UIM) benefits paid to its
insured, asserting that the step-down provision in defendant's
policy was unenforceable. We held that where a claimant, other
than the named insured, seeks to void a step-down provision,
asserting that the insurer failed to provide reasonable notice
of a change in UIM coverage by including such a provision, the
burden of persuasion to prove inadequate notice to the insured
rests with the claimant, not the insurer.

12-27-06 All Modes Transport, Inc., et al. v. William G.
Hecksteden, et al.
A trial court has no obligation to interrupt a party's
testimony to warn him that it may be self-incriminating. A
trial court should not suggest to a party that the failure to
settle a case may result in the court referring that party's
testimony to the appropriate prosecuting authority.

12-27-06 JS Properties, L.L.C., et al. v. Brown and Filson,
Inc., t/a Shelby's
In this commercial tenancy matter, the tenant filed a
counterclaim, asserting the novel claim that it was
constructively evicted as a result of the landlord's allegedly
malicious suit for possession. The court was not required to
determine whether such a theory should be recognized in this
State because the tenant remained in possession of the leased
premises for six months following the commencement of the suit
for possession, a fact which was fatal to the constructive
eviction claim. The court, however, reversed and remanded for a
new trial on the landlord's claim for damages because the trial
judge erred in excluding the tenant's expert testimony regarding
the fair market sale or rental value of the leased premises,
which was offered to show that the landlord did not take
reasonable steps in mitigating damages.

12-26-06 Robert C. McKenzie v. Board of Trustees of the Public
Employees' Retirement System
Under N.J.S.A. 43:15A-61, a government employee must remain
actively engaged in his or her "office, position or employment"
until he or she attains the age and service requirements to
qualify for veterans' benefits upon retirement.

12-21-06 Nicholas Diehl v. Beverly Diehl
On remand for a Lepis hearing, the judge determined that
plaintiff was disabled, awarded him counsel fees and costs,
reduced his support obligations retroactively and gave him a
credit for all retroactive SSD benefits paid to the child. We
conclude: (1) a credit for weeks during which plaintiff had no
court-ordered support obligation is not equitable; (2) a credit
for the period during which plaintiff was required to pay
support at the level set in the final judgment is equitable,
Sheren v. Moseley, 322 N.J. Super. 338 (App. Div. 1999); and (3)
a credit for benefits paid for weeks during which plaintiff was
charged with support at a reduced level was neither equitable
nor consistent with the child support guidelines, R. 5:6A; Child
Support Guidelines, Pressler, Current N.J. Court Rules, Appendix
IX-B to R. 5:6A at 2255 (2007).

12-20-06* State of New Jersey v. Breane Starr Blakney
In this appeal of defendant's murder conviction arising out
of the death of her six-month-old infant, we found that the jury
charge on the limited purposes for which evidence of prior abuse
of the infant could be considered pursuant to N.J.R.E. 404(b)
was neither confusing nor vague. In addition, we concluded that
the prosecutor's summation, though highly charged and delivered
without objection from the defense, was not so egregious that
defendant was deprived of a fair trial. We agree, however, that
defendant's conviction for third-degree aggravated assault
should have been charged as a lesser included offense of seconddegree
aggravated assault.
Judge Weissbard filed a dissenting opinion in which he
disagreed with the majority's conclusion that the trial court
properly instructed the jury on the 404(b) evidence. He also
concluded that the prosecutor's misstatements during summation
further emphasized the need for carefully tailored, complete and
forceful limiting instructions. In his view, these errors
resulted in extreme prejudice to defendant in a case where the
evidence, if properly considered by the jury, could have
supported a manslaughter verdict rather than the murder
conviction. [*Approved for Publication date]

12-20-06 State of New Jersey v. Ryan Buda
An excited utterance made by a child abuse victim to a DYFS
worker at a hospital, although admissible under state evidence
law, is inadmissible in this case as a result of evolving
federal constitutional jurisprudence under Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004), and Davis v. Washington,__ U.S. __, 126 S. Ct. 2266, 165
L. Ed. 2d 224 (2006). There is a concurring opinion.

12-19-06 State of New Jersey v. Manuel B. Ortiz
The question presented is whether a defendant who is
adjudicated not guilty by reason of insanity, N.J.S.A. 2C:4-1,
and released, pursuant to N.J.S.A. 2C:4-8b(2), may be subjected
to periodic Krol reviews as a condition of release. Although we
answered the question in the negative, we concluded that the
court possesses inherent authority to impose, as a condition of
release under N.J.S.A. 2C:4-8b(2), the submission of periodic
reports from the defendant's mental health provider concerning
defendant's treatment, compliance with his medication regimen,
and future prognosis.

12-18-06 Barbara Stoffels v. Harmony Hill Farm, et al.
This appeal concerns the statute governing equine animal
activities, N.J.S.A. 5:15-1 to -12, that grants to a stable
operator a limitation on liability, subject to several
exceptions. Two exceptions to the limitation on operator
liability were at issue. We held that the operator of a stable
properly relied on a comprehensive e-mail message from plaintiff
that provided an extensive description of her horse riding
experience. The judge properly granted summary judgment and
dismissed this aspect of plaintiff's complaint. We held,
however, that genuine issues of material fact existed whether
the horse assigned to plaintiff by the operator was suitable,
thereby precluding summary judgment on this portion of
plaintiff's claim.

12-15-06 J.S. v. L.S.
Defendant, who was statutorily presumed, by N.J.S.A. 9:17-
43a(1), to be the father of a child born to his wife during
their marriage, was properly relieved of all current and future
obligations of financial support for the child when genetic
testing established that he was not the biological father.
Defendant was not entitled, however, to recover from his ex-wife
sums he paid for the support of the child from birth to the time
that the presumption of paternity was rebutted. In spite of the
ex-wife's deceit, she was not liable for reimbursement of money
paid by defendant for child support based on his presumed
paternity. She was not unjustly enriched because responsibility
for support runs from parent to child, not parent to parent.
Requiring the mother to reimburse would be contrary to the best
interests of the child since that would inevitably result in
depletion of resources for the child.
To the extent anyone has been unjustly enriched, it was the
true biological father, who was not a party to the action.
Defendant's remedy is against him, not the mother.

12-14-06 Lorraine Ramsey, et al. v. Delaware River and Bay
Authority, et al.
We hold that the Delaware River and Bay Authority (DRBA)
improperly instituted a one-year suit limitation period and a
Delaware venue provision governing actions against the DRBA
resulting, as in this case, from personal injuries sustained by
passengers on the Cape May-Lewes Ferry. These significant
actions should have been approved by the DRBA commissioners
pursuant to the legislative compact governing the DRBA.
N.J.S.A. 32:11E-1. As a result, summary judgment in favor of
the DRBA dismissing the passenger's personal injury suit is

12-13-06 Debra S. Smerling, et al. v. Harrah's Entertainment,
Inc., et al.
Plaintiff's consumer fraud action against a licensed casino
hotel alleging false and misleading promotional advertising is
not preempted by the Casino Control Act's comprehensive
regulation of New Jersey's casino industry. We discern no
"direct and unavoidable conflict" between the dual regulatory
schemes, which share a mutual view "assuring that such
advertisements are in no way deceptive; nor do we perceive that
judicial construction would affect the uniformity of the
interpretation or application of the Casino Control Act's
statutory or regulatory requirements.

12-12-06 In the Matter of a Grand Jury Subpoena Issued to Amato
A. Galasso, Esq.
Given the secrecy underlying a grand jury proceeding, the
judge was entitled to rely on an ex parte certification
submitted for in camera review by the State in opposition to a
motion to quash a grand jury subpoena.

12-11-06 Cipriani Buildersm Inc., et al
A trade association's failure to comply with its own bylaws
in expelling a member may support a claim that the
expulsion was wrongful. Statements by a trade association's
executive director that certain members had engaged in "lowly
maneuvers," "illegal rule-breaking" and "dissension-causing
tactics" were only rhetorical hyperbole and therefore could not
support a defamation claim.

12-08-06 State of New Jersey v. Walter Tuthill, et al.
We hold that a surety's obligation on a bail bond is not
necessarily released by a court's mistaken cancellation of the
bond, and that absent a showing by the surety of detrimental
reliance or a material increase in the risk originally
undertaken, a court is not bound by its error, has the power to
correct it, and acts within its discretion in ordering the bond
reinstated without the surety's consent.

12-07-06 State of New Jersey v. Franklin Saving Account Number
2067, et al.
On motion of the State's adversary in this civil forfeiture
proceeding, the trial court quashed a subpoena for bank records
that did not comply with Rule 4:14-7(c), precluded the State
from issuing another, granted summary judgment against the State
and required the State to pay counsel fees pursuant to Rule 1:4-
8. Prior to commencing this forfeiture action, however, the
State demonstrated probable cause and obtained a court order
that authorized seizure of the account and compelled the bank to
surrender related records.
We conclude that it was a mistaken exercise of discretion
to impose a sanction tantamount to a dismissal of the State's
case under these circumstances. The deviation did not prejudice
the litigant or deprive him of the protection that Rule 4:14-
7(c) was designed to afford.
We also conclude that the court erred in imposing sanctions
under Rule 1:4-8. The moving party did not follow the
procedural requirements of Rule 1:4-8(b). Moreover, there was
no basis for a finding that the subpoena was issued for an
improper purpose or without the evidential support required at
this early stage of the proceeding. See R. 1:4-8(a)(1)-(4).

12-07-06 Allstate New Jersey Insurance Company, et al. v.
Cherry Hill Pain and Rehab Institute, et al.
Defendant's initial Camden County action against
plaintiffs, seeking judgment that it was entitled to
reimbursement for the medical treatment of patients, was
dismissed pursuant to R. 4:6-2(e). Thereafter, plaintiffs filed
this action against defendants in Burlington County which was
dismissed by the trial court under the entire controversy
We first held that R. 4:6-2(e) provides the option to raise
its enumerated defenses either by motion or in an answer, and
plaintiffs were not prohibited from raising their defense of
lack of standing in an answer to defendants' Camden County
We also held that the entire controversy doctrine should
not bar plaintiffs' subsequent Burlington County action against
defendants where application of the doctrine would not further
its objectives to promote conclusive determinations, public
policy, party fairness, and judicial economy. Since defendants'
initial action against plaintiffs was dismissed for lack of
standing and failure to state a claim, and not on the merits,
and because plaintiffs' complaint alleged claims which are
separate and discrete from those asserted in the initial action,
the trial court's application of the entire controversy doctrine
to bar plaintiffs' action against defendants was inappropriate.
Finally, defendants will not be prejudiced in their defense of
plaintiffs' claims. We therefore reversed and remanded for
further proceedings.

12-05-06 Michael Allen, et al. v. World Inspection Network
International, Inc.
We held that a provision in a franchise agreement,
requiring that all disputes be arbitrated in the State of
Washington, was an integral part of the arbitration clause and
therefore fell within the ambit of the Federal Arbitration Act.
Under Supremacy Clause principles, the New Jersey Franchise
Practices Act could not preclude enforcement of this forum
selection provision. We also concluded that the trial judge's
findings were insufficient to justify voiding the forum
selection provision under general principles of State contract
law, the only relevant exception to enforceability under the
Federal Act.

12-01-06 Ismael Negron v. Melchiorre, Inc., et al.
In this appeal we consider whether a party who files an
offer of settlement for a specified amount pursuant to the Offer
of Judgment Rule is entitled to recover from the party not
accepting the offer, the sanctions available under Rule 4:58-2,
when: (1) defendant did not accept plaintiff's offer within
ninety days of its service; (2) the first trial in the
underlying litigation was nullified as a mistrial; (3) the
jury's verdict in a second trial was set aside by the trial
court; (4) a final judgment in plaintiff's favor, awarding him
damages greater than 120% of his offer of settlement was not
entered until the completion of a third trial; and (5) the
initial offer of settlement was not reaffirmed after the first
mistrial, or at any time thereafter.
We now hold that the sanctions provided in Rule 4:58-2 are
enforceable against the party who fails to accept an offer of
judgment "prior to the 10th day before the actual trial date or
within 90 days of its service, whichever period first expires,"
Rule 4:58-1, even if the first trial results in a mistrial. The
only requirement for the enforceability of these sanctions is
the entry of a final judgment disposing of the case. Rule 4:58-
5. It matters not whether the final judgment was entered after
the completion of one trial, or, as here, after the completion
of the third trial.

11-30-06 In the Matter of the Probate of the Will of Samuel Lee
Federal law controls issues regarding payment of federal
estate taxes and therefore controls the question of repayment to
a surviving spouse's estate of the federal estate tax
attributable to Qualified Terminable Interest Property created
under the will of the spouse who was first to die. As a result,
the trial judge was incorrect in holding that charitable
beneficiaries of QTIP trusts were not exonerated from the
payment of the federal estate taxes attributable to the QTIP
trusts. However, as a matter of state law, the will could be
construed to provide family members a greater share of the
estate to pay federal estate taxes which must be paid
exclusively from their shares.

11-28-06 Lydia Forrestall v. Michael S. Forrestall
Neither employer contributions to a 401(k) plan nor the
income generated by that plan would have been available to pay
child support expenses in an intact family and are, therefore,
not includable in determining a parent's income for child
support purposes.

11-28-06 Donald M. Tretola v. Jane K. Tretola
At issue in this appeal are the rights of the non-custodial
parent to information and modification of his support and
educational obligations for the parties' nineteen-year-old son,
who is both employed and attending college full time. We
reverse the trial court's order denying plaintiff's request to
emancipate his son and requiring a contribution towards college
expenses, and remand for discovery and a plenary hearing.
The Family Part judge was remiss in not requiring defendant
to submit documentation of Daniel's credits and earnings and in
dismissing the matter summarily. The judge also erred in
failing to schedule a plenary hearing to determine the intent of
the parties in entering into the PSA, which did not
specifically address this situation, and to evaluate Daniel's
college plans, expenses, income and savings, and his parents'
financial status before concluding he was not economically selfsufficient
to warrant emancipation, or that there was not a
sufficient change of circumstances for the modification of child

11-28-06 Papergraphics International, Inc. v. Juan "J.J."
Correa, Jr., et al.
Trial court's summary judgment of liability under the New
Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-01 to -109,
reversed. We found CFA applicability hinges on the nature of a
transaction, requiring a case by case analysis. In this case
the plaintiff's purchase of 9,714 printer ink cartridges, bought
for resale at a significant profit not for its individual use
was not the type of "consumer transaction" covered by the
statute. The commercial transaction was between parties who
were experienced commercial entities of relatively equal
bargaining power, which engaged in negotiated contracts.
Further, plaintiff had knowledge of the potential risks of
purchase at the time of sale and was not an unsophisticated

11-21-06 In re Contest of the November 8, 2005 General Election
for the Office of Mayor for the Township of
Parsippany-Troy Hills
In an election contest pursuant to N.J.S.A. 19:29-1 to -14,
second-place petitioner alleged the receipt of illegal votes and
the rejection of legal votes as a cause for the contest.
N.J.S.A. 19:29-1e. The motion judge dismissed the petition for
failure to state a claim pursuant to Rule 4:6-2(e). The
petition contained the names, addresses and voting districts of
alleged illegal voters, and rejected legal voters, in sufficient
number to potentially change the outcome of the election in
petitioner's favor. We reverse and hold that petitioner pled
her case with the required specificity of N.J.S.A. 19:29-2 and
that the burden placed on the petitioner by the motion judge at
the pleading stage was too onerous. The matter is remanded for
an expedited plenary hearing and other proceedings consistent
with our holding.

11-21-06 David Foster v. Newark Housing Authority, et al.
The New Jersey Tort Claims Act ("TCA"), N.J.S.A. 59:1-1 to
59:12-3, rather than common law, governs negligence actions
against a public entity landlord.
A police officer's right to sue under the statute
abrogating the fireman's rule, N.J.S.A. 2A:62A-21 to -22, is
subject to the TCA if the defendant is a public entity covered
by the TCA.
A jury could find that maintenance of an unlocked door to a
public entity's apartment building is palpably unreasonable.

11-21-06 Howard Wein, et al. v. Jack Morris, et al.
In this appeal, the court held that the trial judge erred
in sua sponte enforcing the parties' agreement to arbitrate at a
time when the matter had been pending for five years, when the
parties' cross-motions for summary judgment were pending and
when a trial was imminent. The court rejected the contention
that defendants were obligated to immediately appeal the order
compelling arbitration, holding that -- despite the order's
dismissal of the complaint and all claims -- it was not a final
order and that defendants were not then obligated to move for
leave to appeal, instead concluding that no prejudice should
result from defendants' failure to seek review of the order
compelling arbitration until final judgment was rendered. The
court also held that by participating thereafter in a sixteenday
arbitration hearing, defendants did not waive their right to
later seek reversal of the erroneous order compelling
arbitration once final judgment was entered.
Lastly, the court held that the arbitrator exceeded his
authority when, after entering an award that resolved all
claims, the arbitrator later revisited and modified his award,
not just to correct "clerical, typographical or computational"
errors but to grant plaintiffs additional affirmative relief
that was denied in the original award.

11-17-06 State of New Jersey v. Mark Ruccatano
The Remittitur Guidelines governing partial remission of
forfeited bail were promulgated by the Administrative Office of
the Courts in Administrative Directive #13-04 issued on November
17, 2004, and were endorsed by us in State v. Ramirez, 378 N.J.
Super. 355 (App. Div. 2005). In part, the Guidelines call for
"minimal remission" in situations where the surety "provided
minimal or no supervision while the defendant was out on bail,"
but the amount of the remission varies depending on whether the
surety did or did not "engage in immediate substantial efforts
to recapture the defendant." In this case, we addressed the
meaning of "immediate substantial efforts."
We held that the immediacy of the surety's efforts should
ordinarily be measured from the time the surety is informed of
the warrant/forfeiture, without reference to when it would or
should have learned of that fact if there had been proper
We also held that "substantial efforts" is given meaning by
the use of the phrase, "reasonable efforts under the
circumstances," one of the listed factors to be weighed in
deciding the amount of the remission. We also equate reasonable
with effective. The word substantial does not relate solely to
the quantum of effort expended by the surety, but to the quality
of that effort.
Here, the surety, once made aware of the defendant's
default, immediately ascertained that he was incarcerated in
another county and notified the Prosecutor's office in the
county where the bail was posted. Though not much effort was
expended, the surety's efforts were effective in recapturing
defendant and were reasonable under the circumstances. As a
result, the surety's efforts were substantial for the purpose of
applying the appropriate Guideline.

11-17-06 M.A. v. E.A.
Under the narrow definition of a "victim" in the Prevention
of Domestic Violence Act codified at N.J.S.A. 2C:25-19(d), an
unemancipated minor who has been sexually assaulted by her cohabitating
stepfather cannot obtain a restraining order against
him under the Act if she does not become pregnant. Nor does the
minor's mother have standing to obtain a TRO or an FRO under the
Act on her daughter's behalf. Any remedy to the statute's
limitations must come from the legislature.

11-17-06 State of New Jersey v. Darnell Bell
Applying New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640,
109 L. Ed. 2d 13 (1990), we held that an illegal search of a
third party's residence, during which defendant was found and
arrested pursuant to a valid arrest warrant, does not justify
suppression of defendant's confession, made three hours later at
the police station. We rejected defendant's argument that we
should reach a different result under Article I, paragraph seven
of the New Jersey Constitution.

11-16-06 E&M Liquors, Inc., et al. v. Public Service Electric &
Gas Company
Utility company immunity for interruption of service does
not extend to direct negligence.

11-16-06 S.T. Hudson Engineers, Inc., et al. v. Pennsylvania
National Mutual Casualty Company, et al.
Plaintiffs filed a declaratory judgment action against
defendant, seeking insurance coverage and a defense, including
counsel fees and costs, under a Comprehensive General Liability
policy and a Commercial Umbrella policy issued by defendant.
We affirmed the trial court's determination that defendant
was obligated to defend plaintiffs. We held that the policies'
professional services exclusion should be construed in favor of
the insureds to provide coverage. Furthermore, the productscompleted
operations coverage, which applied to the giving of
warnings and instructions, was not included in the professional
services exclusion. As a result, defendant had a duty to defend
plaintiffs under the products-completed operations coverage for
plaintiffs' alleged negligent failure to provide warnings, and
such a duty is not shielded by the professional services
Finally, we affirmed the trial court's determination that
plaintiffs are "successful claimants," pursuant to R. 4:42-
9(a)(6), and therefore are entitled to counsel fees and costs
incurred in prosecuting the initial litigation.

11-16-06 The Estate of Vaciliki Nicolas, et al. v. Ocean Plaza
Condominium Association, Inc.
We hold that Sections 5-4.1 and 5-12(g) of the New Jersey
Law Against Discrimination provide a cause of action for
disability discrimination based upon the failure of a
condominium association to provide a disabled resident, of a
multiple unit condominium building, a reasonable parking space
accommodation sufficient to afford her an equal opportunity to
the use and enjoyment of her condominium unit.

11-15-06 Theresa Palmieri v. Angelo Palmieri
A motion judge should not resolve factual disputes on the
basis of conflicting certifications purporting to demonstrate
whether the ex-wife was "residing with an unrelated person,"
which pursuant to a clause in the property settlement agreement,
would be grounds for termination of alimony payments. Moreover,
the language of such a clause must be construed reasonably, so
as not to reach an absurd result and so as not to ignore the
qualification in Konzleman v. Konzelman, 158 N.J. 185, 202
(1999), that a mere romantic, casual or social relationship is
not sufficient to justify the enforcement of a provision in a
property settlement agreement terminating alimony.

11-13-06 Chicago Title insurance Company, et al. vs. Donald
Bryan, etc. and other consolidated cases
A-1840-04T3; A-3108-04T3; A-2039-05T3; A-3110-04T3;
A-3111-04T3; A-3112-04T3; A-3113-04T3; A-3114-04T3;
A-3115-04T3; A-3116-04T3; A-3117-04T3; A-3118-04T3;
A-3119-04T3; A-3120-04T3; A-3121-04T3; A-3122-04T3;
A-3123-04T3; A-2034-05T3; A-2035-05T3; A-2036-05T3;
A-2037-05T3; A-2038-05T3; A-2040-05T3; A-2041-05T3;
A-2042-05T3; A-2043-05T3; A-2044-05T3; A-2045-05T3;
Title insurance companies are subject to assessments
authorized by the Insurance Fraud Protection Act, N.J.S.A.
17:33A-1 to -30, which are used to fund the operation of Office
of Insurance Fraud Prosecutor. They are not exempt from the
assessments by the provisions of the Title Insurance Act of
1974, N.J.S.A. 17:46B-1 to -62.

11-09-06 Ronald J. Bruno, et al. v. Mark Magrann Associates,
Inc., et al.
Home buyer, with broad arbitration clause in purchase
contract with developer, may be required to arbitrate dispute
over home's heating system with subcontractors, even in the
absence of direct contractual relationship with subcontractors.

11-09-06 Marie Brun v. John Cardoso, et al.
We held that where the interpretation of an MRI is in
dispute, the report of a radiologist interpreting the MRI is, on
objection, inadmissible hearsay and not subject to admission as
a business record, N.J.R.E. 803(c)(6), to be bootstrapped into
evidence by another expert pursuant to N.J.R.E. 705. In such
circumstances, due to the complexity of MRI interpretation, the
expert who seeks to rely on the report must be qualified to
interpret the film or the radiologist who in fact authored the
report must be produced as a witness subject to crossexamination.
We further held that a "rule" prevalent in a particular
county prohibiting chiropractors from testifying to the results
of MRIs is unauthorized and should not be followed. There can
be no such local rules on matters of substantive law. Each
judge must decide a matter based on the law as they understand
it, not on a consensus among judges in their county.
Finally, we held that the trial judge erred in dismissing
plaintiff's complaint rather than declaring a mistrial, where
plaintiff's substitute radiologist advised counsel shortly
before trial that he did not agree in part with the MRI
interpretation of his former employee and was prepared to offer
an opinion more favorable to plaintiff. Under the
circumstances, even though a mistrial would permit plaintiff to,
in effect, make a late amendment to her interrogatory answers, a
dismissal was too harsh a sanction, particularly when defendants
already had an expert prepared to rebut the interpretation of
plaintiff's substitute expert.

11-06-06 In the Matter of A.S. // Division if Youth and Family
Services v. K.S., J.S., R.S. and T.S. // In the Matter
of the Guardianship of A.S. A Loving Choice Adoption
We affirm the Family Part's denial of appellant's motion to
intervene in this protective services litigation holding the
natural parent's execution of a surrender of parental rights to
an approved agency consenting to her child's placement for
adoption was ineffective as custody of the child had previously
been transferred to a third party, from whom DYFS effectuated an
emergency removal, which was later confirmed by an order
granting the Division custody, care and supervision of the
child. To allow intervention would usurp the State's authority
to protect the best interests of the child and the court's role
in overseeing the Division's responsibility to supervise her

11-06-06 Ramon Robles v. New Jersey Department of Corrections
We rejected a Department of Correction's blanket policy of
keeping confidential all security camera videotapes in order "to
preclude inmates from learning camera angles, locations, or
blind spots." Instead, we directed the Department to develop a
record, regarding the particular need for confidentiality of
specific videotapes, that could be reviewed by this court.

11-06-06 Beverly Roman v. City of Plainfield, et al.
When the roots of a municipally-owned tree have caused a
sidewalk slab to be upraised and uneven, and when the
municipality forbids the commercial landowner from cutting the
tree roots in order to repair the sidewalk, the municipality has
exercised sufficient "control" over private property within the
meaning of the Tort Claims Act, N.J.S.A. 59:4-1(c), to have made
the granting of the municipality's motion for judgment at the
conclusion of plaintiff's case, improper. In so ruling, we
conclude that a municipality can be liable for a dangerous
condition existing on private property when the municipality has
so usurped a private landowner's control of his own property as
to potentially warrant a finding that the municipality has
treated the private property as though it owned it. Posey ex
rel. v. Bordentown Sewerage Auth.

11-02-06 Tahiyyah Jones v. Naser City Transportation Corp., et
Under the relevant statute, N.J.S.A. 17:28-1.1, a motor
vehicle insurance policy issued to a taxicab owner may limit
uninsured motorist's coverage to the insured and the cab
drivers, while excluding such coverage for passengers.

11-01-06 Robert Lodato v. Evesham Township, et al.
Plaintiff, Robert Lodato, appealed the grant of summary
judgment in favor of defendants, Evesham Township, Shade Tree
Advisory Commission of Evesham Township, and Tana and Stephen
Baughn, dismissing plaintiff's personal injury action against
defendants seeking damages for injuries plaintiff suffered when
he fell over a sidewalk slab raised by a tree root. We affirmed
the grant of summary judgment in favor of the Shade Tree
Advisory Commission and Tana and Stephen Baughn. We reversed
the grant of summary judgment in favor of Evesham Township
because plaintiff's proofs, showing that the condition of the
sidewalk was open and obvious, that the condition of the
sidewalk existed for eighteen years, and that Township employees
were called to the same area to repair similar conditions, were
sufficient to create a question of fact whether the Township had
constructive notice of a dangerous condition under N.J.S.A.
59:4-3b of the Tort Claims Act.

11-01-06 State of New Jersey v. Amy Eldridge
Where the State and defendant offered contrasting theories
of causation in a vehicular homicide prosecution, failure to
charge volitional conduct of another as an intervening cause,
pursuant to N.J.S.A. 2C:2-3c, was reversible error. The State
argues that if the jury had accepted defendant's version of the
cause of the crash, she would have been found not guilty under
the "but-for" causation test of N.J.S.A. 2C:2-3a(1); and
therefore, the failure to give a jury instruction was harmless
We reject that argument.

10-30-06 Lisa Lozner (n/k/a Fitzgibbon) v. Steven W. Lozner
We hold that substantial student loan debt can constitute a
factor to be considered in determining whether alteration of a
guideline-based support award is warranted, provided the parent
reasonably and necessarily acquired the loan for educational
purposes with the goal of improving his or her earning capacity.

10-25-06 Regency Savings Bank, F.S.B. v. Southgate Corporate
Office Center, et al.
When a sheriff's sale pursuant to a mortgage foreclosure
judgment is cancelled by plaintiff because of a settlement with
defendant, the sheriff's percentage fee under N.J.S.A. 22A:4-8
must be based, not on the amount of the judgment or the value of
the property, but on the amount of the settlement. When the
settlement calls for a cash payment for cancellation of the
sale, for which defendant receives additional time to obtain
refinancing, with the understanding that on a failure to meet
the deadline for refinancing, plaintiff will receive a deed to
the property from defendant, the amount of the settlement is the
cash payment.

10-25-06 In re Referendum Petition to Repeal Ordinance 04-75
The trial court erred in determining that petitions for a
referendum to reject a municipal ordinance did not satisfy the
standards of N.J.S.A. 40:69A-185. The ordinance involved a
reorganization of the Trenton Police Department.
Where close questions are presented, the default rule in
deciding where the ultimate decision-making authority on the
municipal level lies is to be found in the Legislature's
declaration of policy that that power rests with the people
through the referendum mechanism.

10-24-06 Bernadette Geringer v. Hartz Mountain Development
In the particularized context of a "triple net" commercial
lease in which the landlord exercised its contractual
prerogative to review and approve the tenant's design and
construction of an entire floor leased within the building, and
where the landlord's premises manager performed a walk-through
inspection of that floor before it was occupied, we hold that
the landlord owed a coextensive duty of reasonable care to
invitees to assure that the design and construction of an
interior stairway on that floor was safe.
However, we affirm the motion judge's determination that
the landlord owed no duty to invitees regarding the maintenance
and repair of the stairway, given the terms of the lease
delegating those particular responsibilities to the tenant and
where the record reflects no actual participation by the
landlord in such maintenance and repair functions.

10-24-06 In the Matter of the Civil Commitment of M.L.V.
Pursuant to N.J.S.A. 30:4-27.28d, the Attorney General may
initiate a court proceeding for the involuntary civil commitment
of a person as a sexually violent predator even though the
Parole Board has granted parole and authorized the individual's
release from incarceration.

10-20-06 Sensient Colors Inc. v. Allstate Insurance Company, et
In this environmental insurance coverage dispute arising
from contamination at a Camden site, we hold that the trial
judge erred in dismissing the insured's New Jersey action in
favor of the insurer's first-filed New York lawsuit. The
"first-filed doctrine" is not an absolute rule of comity-stay
jurisprudence to be rigidly exercised but rests with the
discretion of the court to be applied in light of underlying
equitable principles. Here, special equities counsel against
deference to the New York action including, most significantly,
New Jersey's strong public policy interest in remediating waste
sites within its borders and in ensuring adequate financial
resources for the job. The fact that remediation in this case
may be near completion or already funded is immaterial since New
Jersey's interest remains equally strong regardless of who
conducts and incurs the costs of remediation and when, and
includes assuring that indemnification agreements allocating
financial responsibility are effectively enforced.

10-19-06 Alan O'Shea, et al. v. New Jersey Schools Construction
Corporation, et al.
The principal issue on appeal was whether the New Jersey
Schools Construction Corporation, a public entity authorized by
the Educational Facilities Construction and Financing Act to
construct and finance school facilities projects, may permit a
general contractor to substitute major trade subcontractors for
those listed in the general's bid documents after the bid was
awarded. We concluded that such a practice is contrary to
public bidding laws and their underlying policies.

10-17-06 Daniel Prado v. State of New Jersey, et al.
A State employee's oral presentation to other State
employees at a staff meeting was within the scope of his
employment and did not constitute willful misconduct, even
though the employee used ethnically and sexually offensive
language during the presentation. Therefore, the employee is
entitled to indemnification from the State for the costs of
defending LAD actions brought against him based on those
offensive comments.

10-12-06 Infinity Outdoor, Inc. v. Delaware and Raritan Canal
Although the Delaware & Raritan Canal Commission (DRCC) has
been established in the Department of Environmental Protection
(DEP) and shares a unique partnership with the DEP in
promulgating rules and regulations for the use and protection of
the Delaware & Raritan Canal State Park, we hold that the DRCC
is the agency head with authority to render final agency
decisions approving, rejecting or modifying proposed projects
within the regulatory review zone, from which appeals to us lie.
Moreover, we find that the applicant in this matter was not
entitled to automatic approval of its application by virtue of
the default provision of N.J.A.C. 7:45-2.6 because any agency
delay in decision making was occasioned by the applicant's own
requests for extension and subsequent revision and ultimate
withdrawal of its amendment.

10-02-06 Borough of Bogota v. Kathleen A. Donovan, et al.
Because a municipality may not enact an ordinance adopting
English as its official language, the County Clerk properly
refused to put on the ballot a non-binding referendum under
N.J.S.A. 19:37-1, asking the voters whether the municipality
should adopt such an ordinance.

09-29-06 Robert Oberhand v. Director, Division of Taxation, et
A-3886-04T2; A-4243-04T2
The retroactive estate tax law adopted on July 1, 2002, by
L. 2002, c. 31, § 1, N.J.S.A. 54:38-1(a)(2)(a), applies without
exception to all resident decedents dying after December 31,
2001, including those who, like the decedents in question,
drafted their wills before the statute was adopted to avoid
federal and state taxes in a manner then permitted by law and
who died after December 31, 2001, and before adoption of the
statute. The Tax Court opinion in Oberhand, 22 N. J. Tax 55
(Tax 2005), erred in granting the estates exemption from the tax
due under the new law by application of the equitable doctrine
of manifest injustice because that doctrine has no place in
retroactive-taxation cases.

09-21-06 State of New Jersey v. Michael A. O’Neill
We reject defendant's claim that the two tape-recorded
statements he made to the police should have been suppressed
because they were the product of a two-stage interrogation
technique (question-first, warn-later) found to be improper by
the United States Supreme Court in Missouri v. Seibert, 542 U.S.
600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).

09-21-06 State of New Jersey v. Anthony Walkings
On appeal, defendant challenged the trial judge's denial of
his motion for a new trial and the judge's refusal to conduct a
hearing into a juror's concerns about jury deliberations in this
criminal matter. The juror first communicated his concerns to
the prosecutor's office the day after the verdict was rendered;
the prosecutor's office later referred the matter to the trial
judge. On appeal, the court agreed that the trial judge should
not have further explored the juror's concerns through his own
ex parte, unrecorded discussions with that juror, holding that
it is improper for a judge to have an ex parte communication
with a juror even after deliberations are complete and after the
jury has been discharged. Due to inadequacies in the record on
appeal, the court held that further proceedings were required in
order to amplify and illuminate the content of the juror's
communications with the prosecutor's office and the trial judge.

09-21-06 State of New Jersey v. Marshall Rountree
In a consolidated opinion, we affirmed the denial of postconviction
relief petitions in two counties, addressing two
issues. First, we held that State v. Franklin, applying
Apprendi to second-offender Graves Act mandatory extended-term
sentences, does not apply retroactively in the context of this
collateral review. Any broadening of Franklin's pipeline
retroactivity can come only from the Supreme Court.
Second, we addressed defendant's ineffective-assistance
argument, namely, that he was prejudiced by the failure of
counsel in both counties to move, pursuant to Rule 3:25A-1, for
consolidation of the pending indictments for purposes of plea
negotiations and sentencing. We concluded that counsel in such
circumstances should move for consolidation, and the failure to
do so established the first prong of defendant's ineffectiveassistance
We concluded, however, that defendant could not establish
the second prong of an ineffective-assistance claim. Defendant
was charged with Graves Act crimes in each county, and he
contended that if he had been sentenced in a single proceeding,
he would have avoided a second-offender extended term. For
purposes of this appeal, we assumed, by analogy to State v.
Owens (but without so deciding), that defendant's premise was
correct. But because defendant rejected a plea offer that was
as favorable as any he could have expected in a consolidated
plea offer, he could not prove that counsels' failures likely
made a difference.

09-18-06 Toll Bros., Inc., et al. v. Board of Chosen
Freeholders of the County of Burlington, et al.
and Toll Bros., Inc., et al. v. Thomas R. Whitesell,
et al. and Toll Bros., Inc., et al. v. Moorestown
Township Planning Board, et al. (Consolidated)
A-4814-03T5; A-4816-03T5; A-6884-03T5
We hold that a developer may be held to its voluntary
agreement to pay more than its pro-rata share of off-site road
improvements despite the fact the scope of the development was
substantially reduced after the agreement was executed. The
agreement should be enforced unless it contravenes an express
legislative policy or is inconsistent with the public interest.

09-12-06 State of New Jersey Division of Youth and Family
Services v. R.L. // IMO the Guardianship of B.L.
State of New Jersey Division of Youth and Family
Services v. E.L. // IMO the Guardianship of B.L.
A-4978-04T4; A-5555-04T4
Held that natural father cannot be held responsible for
failure to acknowledge abusive acts of mother to child.

09-11-06 Saddle Brook Realty, LLC v. Township of Saddle Brook
Zoning Board of Adjustment, et al.
Plaintiff failed to demonstrate as a special reason for use
variance that strip mall was "particularly suitable" location
for proposed fast food restaurant or that variance for this use
could be granted without substantially impairing the purpose and
intent of the municipality's zoning ordinance that prohibits
fast food restaurants in every district.


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