New Jersey 2010 Court Opinions
 

2006 - 2007 - 2008 - 2009 - 2010

2010 NEW JERSEY SUPREME COURT OPINIONS

4-8-10 Hermes Reyes, et al. v. Harry C. Egner, et al.(A-90-08)

In Hermes Reyes, et al v. Harry C Egner, et al., the New Jersey Supreme Court affirmed the judgment of the Appellate Division and held that the Hopkins duty of care to warn of any reasonably discoverable dangerous condition in the home does not extend to a real estate agent facilitating a short-term lease of a summer rental.

4-7-10 State of New Jersey v. J.G. (A-44-08)

In State of New Jersey v. J.G., the New Jersey Supreme Court held the cleric-penitent privilege applies when, under the totality of the circumstances, an objectively reasonable penitent would believe that a communication was secret, that is, made in confidence to a cleric in the cleric’s professional character or role as a spiritual advisor.

4-6-10 In re: Petition for Referendum of the City of Trenton Ordinance 09-02

The relevant provision of the Municipal Utilities Law, N.J.S.A. 40:62-3.1, eliminates only the mandatory requirement of a referendum; it does not affect the citizens’ right to contest an ordinance as provided by the Faulkner Act. Ordinance 09-02 of the City of Trenton, which authorizes the sale of a municipal water utility system to a private entity, must be submitted to the voters.

3-31-10 New Jersey Division of Youth and Family Services v. M.C. III/ In the Matter of M.C. IV and N.C. (A-96/97-08)

The trial court’s findings of abuse and neglect in this case were supported by sufficient evidence, defendant M.C. is barred by the doctrine of invited error from contesting on appeal the admission of documents that were admitted into evidence with his express consent, and the trial court did not err in relying on those documents.

3-30-10 Marina Stengart v. Loving Care Agency, Inc. (A-16-09)

Under the circumstances, Stengart could reasonably expect that e-mail communications with her lawyer through her personal, password-protected, web-based e-mail account would remain private, and that sending and receiving them using a company laptop did not eliminate the attorney-client privilege that protected them. By reading e-mails that were at least arguably privileged and failing to promptly notify Stengart about them, Loving Care’s counsel violated RPC 4.4(b).

3-22-10 State of New Jersey in the Interest of C.V. (A-6-09)

The Supreme Court has no disagreement with the Appellate Division’s unassailable determination that C.V.’s placements in YCS and VisionQuest do not satisfy the intended concept of detention in Rule 5:21-3(e) to qualify for mandatory day-to-day credit. In addition, the Court holds that the Family Part court retains the flexibility, in appropriate cases, to grant a probationer who violated or otherwise imperfectly performed the conditions of probation any sentence the court could have initially imposed.

3-17-10 Lucent Technologies, Inc. v. Township of Berkeley Heights (A-95-08)

Although the municipality’s dismissal motion was not untimely, the Court reverses the appellate panel’s judgment that that tax appeal be dismissed in its entirety and remands to the Tax Court for a reasonableness hearing consistent with the Court’s holding in Ocean Pines, Ltd. V. Borough of Point Pleasant.

3-17-10 1717 Realty Associates, LLC v. Borough of Fair Lawn (A-26-09)

Judgment of the Appellate Division is affirmed based on the Court’s judgment in Davanne Realty v. Edision Township, also decided today.

3-17-10 Davanne Realty v. Edison Township (A-25-09)

Judgment of the Appellate Division is affirmed substantially for the reasons set forth in Judge Grall’s thorough and thoughtful opinion. The statutory-appeal dismissal sanction does not violate the Excessive Fines Clause of the Eighth Amendment or the State Constitution.

3-9-10 State v. Jason V. Broom-Smith (A-3-09)

The Court affirms the Appellate Division’s determination that N.J.S.A. 2B:12-6 and Rule 1:12-3, which address the designation of judges, were broad enough to authorize the Berkeley Township municipal judge to issue the search warrant for defendant’s house in Dover Township under the circumstances presented in this case.

3-8-10 In re Election Law Enforcement Commission Advisory Opinion No. 01-2008 (A-83-08)

The Election Law Enforcement Commission’s interpretion of N.J.S.A. 19:44A-11.2(a)(6) is not plainly unreasonable. An “ordinary” expense of holding public office does not include legal costs incurred defending against an indictment charging official corruption.

2-24-10 New Jersey Division of Youth and Family Services v. L.L. (A-68-08)

Pursuant to N.J.S.A. 3B:12A-6(f), the parent seeking to terminate the kinship legal guardianship has the burden of proving by clear and convincing evidence both that the parent has overcome the incapacity or inability to care for the child that led to the original guardianship proceedings, and that termination of kinship legal guardianship is in the best interest of the child.

2-23-10 State v. Fareed M. Gandhi (A-101-08)

The jury charge in this case was not erroneous because New Jersey’s anti-stalking statute, N.J.S.A. 2C:12-10, reaches and punishes one who purposefully or knowingly engages in a course of stalking conduct that would cause a reasonable victim to fear bodily injury or death. The statutory offense applies even if the defendant is operating under the motivation of an obsessed and disturbed love the purportedly obscures appreciation of the terror that his or her conduct would reasonably cause to the victim.

2-18-10 Vivian Crespo v. Anibal Crespo (A-28-09)

Judgment of the Appellate Division is affirmed substantially for the reasons expressed in the thorough opinion of Judge Fisher. The Prevention of Domestic Violence Act is constitutional.

2-3-10 State v. Thomas Best (A-77-08)

A school administrator need only satisfy the lesser reasonable grounds standard rather than the probable cause standard to search a student’s vehicle parked on school property.

2-2-10 Robert Nicastro, et al. v. McIntyre Machinery America, Ltd. (A-29-08)

This Court reaffirms the reasoning of its decision in Charles Gendler & Co. v. Telecom Equipment Corp., 102 N.J. 460 (1986), and holds that a foreign manufacturer that places a defective product in the stream of commerce through a distribution scheme that targets a national market, which includes New Jersey, may be subject to the in personam jurisdiction of a New Jersey court in a product-liability action.

1-25-10 Asbury Park Press v. County of Monmouth, et al. (A-8-09)

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Ashrafi’s opinion. The Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, requires disclosure of a settlement agreement between the County of Monmouth and an employee who filed a lawsuit claiming sex discrimination, sexual harassment, retaliation, and a hostile work environment. The Court also agrees that plaintiffs Asbury Park Press and John Paff are entitled to reasonable attorney’s fees, which the trial court is to determine on remand.

1-25-10 State v. Terence McCabe (A-88-08)

Part-time municipal court judges must recuse themselves whenever the judge and a lawyer for a party are adversaries in some other open, unresolved matter.

1-21-10 State v. Cory Bieniek (A-99-08)

The sentence imposed on defendant Cory Bieniek by the trial court is valid and must be affirmed.

1-21-10 Wilman Pinto and Alvaro Vasquez v. Spectrum Chemicals, et al. (A-94-08)

The Court upholds the decision of the trial judge who found that the parties did not reach a settlement through the mediator. In addition, the Court lifts the bar that Coleman v. Fiore Bros., 113 N.J. 594 (1989) placed on public-interest attorneys and defendants from simultaneously negotiating merits and attorneys’ fees claims in Consumer Fraud Act (CFA) cases. In the Conscientious Employee Protection Act (CEPA) and the New Jersey Law Against Discrimination (LAD) claims at issue in this case, and in future CFA cases, public-interest counsel may simultaneously negotiate merits and fees. Defendants, however, may not insist on a waiver of fees or dictate how settlement proceeds should be divided between a public-interest attorney and her client in a feeshifting case.

1-14-10 Fernando Roa and Liliana Roa v. LAFE and Marino Roa (A-72-08)

Under New Jersey’s Law Against Discrimination, the statute of limitations begins to run on a discrete retaliatory act, such as a discharge, on the date on which the act takes place, and a timely claim based on post-discharge retaliatory conduct does not sweep in a prior untimely discrete act which the victim knew or should have known gave rise to a retaliation claim. However, a discrete post-discharge act of retaliation is independently actionable even if it does not relate to present or future employment, and evidence relating to barred claims may be admissible in the trial of the timely claim.

1-6-10 Hildegard Kay v. George Kay (A-93-08)

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Grall’s opinion below. A trial court may not refuse to consider the equitable claims raised by the estate of a deceased spouse who, during the divorce litigation, was attempting to pursue a claim that the surviving spouse had diverted marital assets.

2010 NEW JERSEY APPELLATE COURT OPINIONS

04-21-10 LAURA HIGGINS et al. v. MARY F. THURBER et al. A-0108-08T1

The court reviewed the dismissal of plaintiffs' legal malpractice action, which was brought against the attorneys for the estate of their late father, based in part on the trial court's application of the entire controversy doctrine. In a prior action in the Probate Part, the executor of the estate sought approval of a formal accounting. Plaintiffs filed exceptions, which challenged the reasonableness of defendant's fees and the adequacy of advice given by defendants regarding those fees. Due to the scope of the exceptions, defendants sought to intervene in the probate proceeding in order to defend themselves. The probate judge granted that request, thereby expanding the reach of the accounting action to arguably include a legal malpractice claim suggested by plaintiffs' exceptions. Shortly before trial in the accounting action, plaintiffs voluntarily dismissed any claims they may have had against defendants that were included in their exceptions and commenced this legal malpractice action in the Law Division. The Law Division judge dismissed the action. On appeal, the court reversed, finding that although the probate judge had expanded the accounting action to include what might appear to be a legal malpractice action against defendants, the probate judge by adhering to a trial date scheduled for approximately two months after defendants were permitted to intervene did not provide plaintiffs with a full and fair opportunity to litigate the malpractice action. The court held it was inequitable to apply the entire controversy doctrine in these circumstances and reversed.

04-20-10 INTERNATIONAL SCHOOLS SERVICES V. W. WINDSOR TOWNSHIP- A-4911-08T1

In this local property tax appeal, the Appellate Division considered whether a non profit organization whose stated goals include "aiding, promoting and encouraging" educational associations "by all appropriate means" actually used the subject property for the "moral and mental improvement of men, women and children," thereby satisfying the second prong for an exemption under N.J.S.A. 54:4-3.6. The Appellate Division disagreed with the Tax court's finding that it did not. However, as the Court agreed that plaintiff has failed to satisfy the third statutory prong that the operation and use of the property must not be conducted for profit, the Court affirmed the denial of the exemption.

04-20-10 JANET FLETCHER V. CESSNA AIRCRAFT COMPANY A-4596-08T2

he General Aviation Revitalization Act of 1994, 49 U.S.C.A. § 40101 note (GARA) is "a statute of repose that generally bars suits against airplane manufacturers brought more than eighteen years after the delivery date to an initial purchaser of the aircraft." Robinson v. Hartzell Propeller, Inc., 454 F.3d 163 (3d Cir. 2006). It does not apply unless the action against the manufacturer is one "in its capacity as a manufacturer." GARA Section 2(a). The question raised on this appeal is whether an action for damages based on Cessna's failure to warn of a potential dangerous condition or to advise about measures available to avoid the condition or its catastrophic results is one against Cessna "in its capacity as a manufacturer." The Appellate Division concluded that it is and reverse the denial of Cessna's motion for summary judgment on these claims.

04-15-10 GUACIARO V. GONZALES A-4988-08T1

Plaintiffs sought UM arbitration when their vehicle was struck by an uninsured motorist. Plaintiffs' insurance carrier rejected the arbitration award. The Appellate Division affirmed the trial court's order granting a new trial on all issues, as opposed to just damages, distinguishing Derfuss v. New Jersey Manufacturers, 285 N.J. Super. 125 (App. Div. 1995), and Salib v. Alston, 276 N.J. Super. 108 (Law Div. 1994).

04-15-10 ROBERT C. CURTIS v. CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS A-1843-08T3

In this matter, the Court examined whether plaintiff's claims under the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -106, fell within the scope of the arbitration clause of the parties' consumer services agreement. In Gras v. Assoc. First Capital Corp., 346 N.J. Super. 42, 52-54, (App. Div. 2001), certif. denied, 171 N.J. 445 (2002), the Court upheld the court's dismissal of a CFA action as the parties' agreement required arbitration of "all statutory claims arising out of the relationship." Although this wireless telephone service agreement did not specifically include a waiver of the consumer's statutory claims, the Court held its language compelling arbitration and mandating waiver of a jury trial were succinctly stated, unambiguous, easily noticeable and sufficiently specific with regard to the actual terms and manner of arbitration, explicitly informing the consumer that resolution of disputes would be in an arbitral forum. Rejecting plaintiff's second point, the Court held the contracts use of " 8 " was not unconscionable.

04-14-10 IN THE MATTER OF THE PROTEST OF AWARD OF NEW JERSEY STATE CONTRACT A71188 FOR LIGHT DUTY AUTOMOTIVE PARTS A-5626-07T1

In this appeal, the Appellate Division considered a challenge by former suppliers of auto parts to the State of New Jersey to a contract awarded by the Director of the Division of Purchase and Property pursuant to N.J.S.A. 52:34-6.2. This statute authorizes the Director to enter into cooperative purchasing agreements between multiple public entities in various states and a vendor. Here, the Director awarded a contract to AutoZone to supply auto parts to the State of New Jersey in accordance with a Master Agreement awarded by Charlotte, North Carolina, following a competitive bidding process.

The Appellate Division held that suppliers of auto parts to the State of New Jersey, whose contracts with the State had recently expired, and their business association have standing to challenge not only the specifications of the cooperative purchasing agreement but also the award of the contract. To effectuate this holding, the Director must provide notice to prospective bidders of the intention to consider utilization of the cooperative purchasing procurement method and notice of any award pursuant to this authority.

While acknowledging our limited scope of review, the Court also held that the record does not provide sufficient information to determine whether the AutoZone Contract meets the statutory standard as the "most cost-effective method of procurement" as found by the Director. Therefore, the Court remanded for further findings of fact.

04-14-10 NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES V. N.S. AND R.B. - IMO THE GUARDIANSHIP OF K.A.N., J.B. AND K.B. A-1076-06T4/A-1338-06T4 (consolidated)

In these consolidated Title Nine matters, two new issues are reviewed: (1) whether defendants may challenge the court's finding of abuse and neglect, even though they have not appealed from the final dispositional order terminating the litigation; and (2) whether N.S.'s right to counsel of her choice was violated by the denial of her request to substitute criminal counsel as her attorney in the Title Nine proceeding.

Addressing the former, the Court confirmed the proper procedure to be followed by defendants is to include that reservation in the final order. As to the latter, it is the court which must review counsel's dual representation request, on notice to the Title Nine parties, and determine whether any conflict exists or the need to enter a protective order is warranted.

04-12-10 CITY OF PLAINFIELD, ET AL. V. NEW JERSEY DEPARTMENT OF HEALTH & SENIOR SERVICES/IN THE MATTER OF MUHLENBERG HOSPITAL A-0107-08T3/A-0179-08T2 (consolidated)

The Commissioner of Health and Senior Services properly granted a Certificate of Need to allow for the closure of Muhlenberg Hospital. In so doing, the Commissioner properly imposed a series of conditions reflecting community needs and complied with the mandates imposed by the Supreme Court in In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413 (2008).

04-12-10 STATE OF NEW JERSEY v. GERMAINE A. HANDY A-1838-07T4

This appeal required us to determine whether evidence found during the search incident to defendant's arrest should have been suppressed because the dispatcher who incorrectly informed the arresting officer that there was an outstanding arrest warrant acted unreasonably under the circumstances, even though the conduct of the arresting officer himself was reasonable. The warrant at issue, which was ten years old at the time, had the same birth month, but a different birth day and year. The first name on the warrant was a variant spelling of defendant's first name. The Appellate Division concluded that suppression is required and, consequently, reversed the conviction.

04-05-10 NEAL BORDEN, ET AL. VS. CADLES OF GRASSY MEADOWS II, LLC, ET AL. A-2386-08T1

efendant was the assignee of a judgment in favor of the Howard Savings Bank (the Howard) and its initial assignee, the Federal Deposit Insurance Corporation (FDIC). Defendant appealed from a judgment extinguishing and discharging a judgment in a foreclosure action on a commercial mortgage note and guaranties entered in favor of the Howard and the FDIC.

Plaintiffs were two of the guarantors of the note against whom the summary judgment was entered. The judge vacated the summary judgment because no deficiency hearing was sought by the Howard or the FDIC after a final judgment of foreclosure was entered and the mortgaged property was sold at a sheriff's sale. Upon examination of how New Jersey courts have applied FMV credits to commercial notes and mortgages, the Court reverse and reinstate the summary judgment because the Howard and the FDIC had no duty to trigger a deficiency hearing after the sale of the property and the burden to seek a hearing rested on plaintiffs through a timely objection to the sheriff's sale.

03-31-10 CATHOLIC FAMILY AND COMMUNITY SERVICES VS. STATEOPERATED SCHOOL DISTRICT OF PATERSON A-0438-08T1

The Appellate Division reversed a final decision of the Commissioner of the Department of Education requiring recoupment of allegedly excessive administrative/indirect costs from an Abbott private preschool provider. The preschool provider's budget was prepared in accordance with Department of Education promulgated guidelines, and approved by the district and Department of Education. All expenses were incurred in accordance with the approved budget. The Commissioner's reliance on oral instructions and past practices cannot override specific agency prepared instructions and guidelines.

03-30-10 NJDYFS V. N.J., D.R. & S.W. (I/M/O THE GUARDIANSHIP OF D.J., N.D.R. & N.R.) A-3598-08T4

In this parental termination case, the Law Guardian for three children appealed from the Family Part's denial of her request to compel the prospective adoptive parent of two of the children to continue visitation among the siblings. The Appellate Division held that the court acted properly in not exercising its parens patriae power to force sibling visitation post-adoption in contravention of express legislative policy, embodied in the New Jersey Adoption Act, N.J.S.A. 7:3-37 to -56, rejecting open adoptions.

The Appellate Division also declined to reach the issue of whether the children have a constitutional right to associate with their siblings post-adoption, finding the question not ripe for resolution since the adoptions in this case have not been finalized and the prospective adoptive parent of at least one set of siblings has expressed a willingness to have the two children continue visits with their other sibling.

03-26-10 E.S. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES A-2564-08T2

Petitioner, an applicant for Medicaid benefits, appeals from the imposition of a transfer penalty a delay in eligibility triggered by the payment of $56,550 to her daughter in consideration of a personal care services contract.

The Department of Human Services, Division of Medical Assistance and Health Services (Division) found the transfer to be for less than fair market value, and to have been made in order to deplete petitioner's estate for Medicaid eligibility purposes. The Division's decision is affirmed.

03-25-10 MIRIAM GONZALEZ V. NEW JERSEY PROPERTY LIABILITY INSURANCE GUARANTY ASSOCIATION, ET AL. A-1298-07T2

In this appeal the Court affirmed the validity of the National Arbitration Forum's Rule 4 (now known as Rule 9), of the New Jersey No-Fault Arbitration Rules, which requires an individual seeking emergent medical treatment disputed by a personal injury protection (PIP) insurer to demonstrate "immediate and irreparable loss or damage." The challenges included: (1) whether Rule 4 violates the Administrative Procedures Act; (2) was ultra vires; (3) imposed additional requirements on PIP claimants in violation of public policy; (4) contravened the authority to decide emergent cases by NAF dispute resolution professionals; and (5) violates equal protection under state and federal constitutions.

03-24-10 CATHERINE KENNEDY CARCHIDI, ET AL. V. MICHELLE A. IAVICOLI, M.D., ET AL. A-4986-08T3

To avoid inherent and unjustified prejudice to the medical malpractice plaintiff and unwarranted interference with the physician-patient relationship, the defense may not use as causation experts physicians who have never treated plaintiff but are members of his treatment group.

03-24-10 POINT PLEASANT BOROUGH PBA LOCAL #158, ET AL. V. BOROUGH OF POINT PLEASANT, ET AL. A-4416-08T2

N.J.S.A. 40A:10-23 permits, among other things, discretionary assumption of the cost of medical expense benefits by municipalities for employees "who have retired after 25 years or more of service credit in a State or locally administered retirement system and a period of service of up to 25 years with the employer at the time of retirement." In light of that statute, the Court held the collective negotiations agreement (CNA) between Point Pleasant Borough PBA Local # 158 and the Borough of Point Pleasant, as well as local ordinance § 14-19, to be ultra vires and thus void because they make no reference to service credits and require a period of actual service with the employer that exceeds the statutorily required period.

03-19-10 PHILIP KOZMA V. STARBUCKS COFFEE COMPANY, ET AL. A-3908-08T3

The opinion upholds a jury verdict of no compensatory damages where the jury assigned sixty percent fault to defendant and forty percent to plaintiff. The Appellate Division determine that the jury was properly instructed and there was no inconsistency in its determinations. Satisfied that no miscarriage of justice occurred, the Court affirmed the denial of plaintiff's application for a new trial on damages only.

03-18-10 STATE OF NEW JERSEY V. HENRY KIM A-3863-08T4

Defendant's conviction for refusal to submit breath samples, N.J.S.A. 39:4-50.2 and N.J.S.A. 39:4-50.4a, is affirmed because the State is not required to prove he understood the standard statement read to him in English, State v. Marquez, 408 N.J. Super. 273 (App. Div.), certif. granted, 200 N.J. 476 (2009), and on procedural grounds because defendant failed to move to exclude evidence of his refusal or present evidence that created a material issue as to his ability to understand English.

03-16-10 COMMITTEE TO RECALL ROBERT MENENDEZ FROM THE OFFICE OF U.S. SENATOR v. NINA MITCHELL WELLS, SECRETARY OF STATE, ET AL. - A-2254-09T1

In the absence of an express provision in the federal Constitution and the fact U.S. Term Limits v. Thornton, 514 U.S. 779, 115 S. Ct. 1042, 131 L. Ed. 2d 881 (1995) considered the qualification clause of Article I of the United States Constitution and involved no Seventeenth Amendment issue, the Appellate Division will not declare the express "recall" provision of the State Constitution regarding a United States Senator, N.J. Const. art. I, ¶ 2b, unconstitutional under the Supremacy Clause for purposes of proceeding with a recall petition. Accordingly, the Court ordered the filing of the notice of petition, with respect to the petition to recall Senator Robert Menendez. However, the Court do not definitively declare the recall provision of our State Constitution valid or invalid with respect to a United States Senator at this point in the process. In light of the substantial constitutional issue involved, the Court stayed its order pending the filing of a notice of appeal or petition for certification to the New Jersey Supreme Court.

03-16-10 ESTATE OF FRANK J. EHRINGER v. DIRECTOR, DIVISION OF TAXATION A-4982-08T3

The Director of the Division of Taxation did not err by denying the estate's claim for a refund of estate taxes because the estate failed to file the refund claim within three years of the payment of the taxes, as required by N.J.S.A. 54:38-3, and the circumstances did not justify a tolling of the statute of limitations.

03-11-10 COMMUNICATIONS WORKERS OF AMERICA, LOCAL 1034 V. NEW JERSEY STATE POLICEMEN'S BENEVOLENT ASSOCIATION, LOCAL 203 AND BURLINGTON COUNTY A-1394-08T1

N.J.S.A. 34:13A-5.3 prohibits policemen from joining "an employee organization that admits employees other than policemen to membership." The Appellate Division conclude that the Public Employment Relations Commission (PERC) exceeded its statutory authority by adopting a per se rule that Burlington County weights and measures supervisors and apprentices are "policemen" within the intendment of this statute solely because of those employees' statutory authority to arrest "on the violation of any of the provisions" of the weights and measures law "within [their] view or presence." N.J.S.A. 51:1-106. The Appellate Division disapprove the per se rule adopted by PERC in In re County of Warren, 12 NJPER 357 (¶171341986), and remand to PERC for further consideration in light of County of Gloucester v. Public Employment Relations Commission, 107 N.J. Super. 150 (App. Div. 1969), aff'd, 55 N.J. 333 (1970), and our opinion.

03-08-10 STATE OF NEW JERSEY IN THE INTEREST OF T.M. A-4897-08T4

This short opinion serves as a reminder to Family Part judges that a hearing to determine waiver of a juvenile for adult prosecution of a designated serious charge does not involve weighing the evidence to determine guilt or innocence but only whether the State has probable cause to charge the juvenile.

03-08-10 JOHN KRAYNIAK V. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM- A-2578-08T3

In this appeal, the Appellate Division decided whether a member of the Prosecutor's Part of the Public Employees' Retirement System (PERS) is eligible to retire pursuant to the Early Retirement Incentive Act (ERI), L. 2008, c. 21. The Court held that such a member is not eligible to retire pursuant to ERI.

03-05-10 JOHN PAFF v. DIVISION OF LAW A-3007-08T1

The Appellate Division analyzed whether unpublished Administrative Agency Advice (AAA) letters issued by the Division of Law, which interpret the statutes and regulations the Division's administrative agency clients are required to apply and enforce, are "government records" for purposes of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and therefore available to the public. The Court answered that question in the negative because it was satisfied that the AAAs are a "record within the attorney-client privilege," N.J.S.A. 47:1A-1.1, and therefore not subject to public access under OPRA.

03-05-10 RONEN SHIMONI V. N.J. DEPARTMENT OF CORRECTIONS A-1408-08T1

Denial by the Commissioner of Corrections of an inmate's application to serve the remainder of his sentence in the country of his citizenship is not subject to the usual standard of judicial review, i.e. whether it was arbitrary, capricious or unreasonable. Considering that inmates have no constitutionally protected liberty interest in an international transfer and given the broad powers statutorily invested in the Commissioner, denial of such an application will not be reversed absent proof that it was made with malicious intent or on a constitutionally impermissible basis, such as race, religion, or national origin.

03-05-10 RAHGEAM JENKINS v. NJ DEPARTMENT OF CORRECTIONS A-1220-08T3

Prison disciplinary regulation prohibiting the possession of "anything related to a security threat group" is not unconstitutionally vague and provides fair warning of prohibited conduct. The court's review of the record, which included a gang investigator's identification of gang-related terms in seized letters and reasons, supported a finding that possession of these letters was prohibited.

03-04-10 NJ EDUCATION ASSOCIATION, ET AL V. STATE OF NJ, ET AL A-4460-07T1

The Appellate Division held that members of the Teachers' Pension and Annuity Fund (TPAF), although entitled by law to the receipt of vested benefits upon retirement, possess no constitutionally-protected contract right to the particular level, manner or method of State funding provided by statute.

02-24-10 COUNTY OF BERGEN EMPLOYEE BENEFIT PLAN AND THE COUNTY OF BERGEN VS. HORIZON BLUE CROSS AND BLUE SHIELD OF NEW JERSEY, ET AL. - A-0616-09T1

Under the Collateral Source Rule, N.J.S.A. 2A:15-97, a county with a self-insured benefits plan for its employees is not entitled to pursue a subrogation action to recover medical expenses the Plan paid to its insured, a county employee who brought personal injury claims against third-party tortfeasors.

02-24-10 JOSEPH A. DONELSON AND JOHN SEDDON VS. DUPONT CHAMBERS WORKS AND PAUL KAISER A-2028-08T1

The Appellate Division extended to a CEPA cause of action the same requirement that already applies to a plaintiff seeking economic damages under the LAD, namely a requirement that the plaintiff prove a constructive discharge or an actual termination of employment before being entitled to an award of back and front pay. Because the trial judge erroneously accepted plaintiff's argument that the jury need not be instructed on constructive discharge or required to so find, the Court vacated the $724,000 economic loss award and the $500,000 punitive damages award and remanded for the entry of judgment in favor of defendant.

02-22-10 CITY OF WILDWOOD V. GARY DEMARZO - A-5250-08T1

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

02-22-10 FORT LEE SURGERY CENTER, INC. v. PROFORMANCE INSURANCE COMPANY- A-1192-08T2

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

02-19-10 JOHN BERKERY, SR. V. ESTATE OF LYLE STUART, ET. AL. A-5105-07T1

In Berkery v. Kinney, 397 N.J. Super. 222 (App. Div. 2007), certif. denied, 194 N.J. 445 (2008), the Court held that plaintiff failed to establish that statements made by a journalist and her publisher in newspaper articles about plaintiff's involvement with the K&A Gang and a book on the subject entitled Confessions of a Second Story Man: Junior Kripplebauer and the K&A Gang were made with actual malice. On this appeal, the Court addressed the application of the same standards to the author and distributors of the same book and conclude that the actual malice standard applies to the author and distributors. The Appellate Division further concluded that plaintiff failed to meet his burden on defendants' motion for summary judgment, and the motion judge did not err in dismissing the complaint.

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

In this condemnation action instituted by the former New Jersey Schools Construction Corporation (now New Jersey Schools Development Authority), the Court held that the value of improvements to the property, made after the defendant owner received a "Notice of Interest" (NOI) letter from the agency, are included in setting just compensation, where there was no proof that these improvements were constructed for the sole purpose of enhancing the condemnation award. Also, absent any indicia of imminent condemnation, the owner who failed to disclose his receipt of the NOI letter to the local zoning board, before which variance approvals were pending, did not engage in bad faith.

As a threshold issue, The Appellate Division held that a consent order of settlement that expressly reserves the right to appeal an interlocutory order and provide that the judgment would be vacated if the interlocutory order were reversed on appeal is appealable under Rule 2:2-3.

02-18-10 CATHY C. CARDILLO, ESQ. V. BLOOMFIELD 206 CORP., JAMES STATHIS AND STEVEN SILVERMAN - A-4020-08T3

The Appellate Division concluded that RPC 5.6(b) is violated when an attorney simultaneously negotiates with the same party a settlement of litigation on behalf of her clients and a related agreement on her own behalf to restrict her practice of law. Rule of Professional Conduct (RPC) 5.6(b) prohibits an attorney from agreeing to restrict the attorney's practice as "part of the settlement of a controversy between private parties." Attorneys may not circumvent the import of RPC 5.6(b) by stating that the settlement of litigation is separate from the agreement to restrict the practice of law, where the agreements were negotiated contemporaneously and are interconnected.

02-11-10 NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES V. J.C. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES V. T.S.L., IN THE MATTER OF THE GUARDIANSHIP OF J.D.L.C. - A-1683-09T4, A-1684-09T4

Following a trial, defendants' parental rights to a minor child were terminated. They timely indicated their desire to appeal, but the Office of Parental Representation failed to file timely appeals and did not move for leave to file notices of appeal out of time until nearly sixteen months after entry of the trial court's judgment and more than four months after the child's adoption. Although such motions are treated with great liberality, the court denied defendants' motions due to both the extraordinary delay in seeking relief and the intervening nonrelative adoption.

02-10-10 DEAN SMITH V. HUDSON COUNTY REGISTER, ET AL. JAMES GENSCH V. HUNTERDON COUNTY CLERK'S OFFICE, ET AL., MARTIN O'SHEA V. SUSSEX COUNTY CLERK'S OFFICE, ET AL. - A-1762-08T2, A-2507-08T3, A-2518-08T3 (consolidated)

Plaintiffs asserted in these three lawsuits that defendants have overcharged them, and other members of the public, for the copying of government records maintained at County offices, in violation of N.J.S.A. 47:1A-5(b) within the Open Public Records Act ("OPRA"), and the common law. The Appellate Division reversed the trial courts' orders dismissing plaintiffs' complaints.

The Court construed N.J.S.A. 47:1A-5(b) to require that, unless and until the Legislature amends OPRA to specify otherwise, or some other statute or regulation applies, the Counties must charge no more than the reasonably-approximated "actual costs" of copying such records. The burden of proving or disproving compliance with that "actual cost" mandate will vary, depending upon whether the charges in question exceed certain fee levels identified in the second sentence of N.J.S.A. 47:1A-5(b). Because of the likely budgetary and administrative impacts of our holding, the Court made this decision prospective, effective at the outset of the next fiscal year, and deny plaintiffs retroactive relief.

02-09-10 STATE OF NEW JERSEY V. DASHAWN MILLER A-3094-08T4

Defendant's trial on charges of robbery of two victims, burglary and related weapons offenses was conducted in a courtroom in which the record is videotaped. During the course of deliberations, the jurors asked to hear the testimony of one of the victims again. The trial judge arranged for the jury to view the video in open court and in the presence of defendant, both counsel and the judge. The jury ultimately found defendant guilty of the crimes, and the judge sentenced defendant to an aggregate term of twenty-eight years, which is comprised of two fourteen-year terms for first-degree robbery and concurrent sentences for the remaining convictions.

In rejecting defendant's claim of prejudice from the replay of the videotaped testimony, the Court assessed the potential for prejudice in light of the options available to the judge. And, in affirming his sentence, the Court applied the standard of review set forth in State v. Bieniek and State v. Cassady.

02-09-10 KENT MOTOR CARS, INC. AND ROBERT BURT V. REYNOLDS AND REYNOLDS CO., AND UNIVERSAL UNDERWRITERS GROUP - A-5246-07T3

The trial court erred in granting dismissal of a "successive action" under Rule 4:5-1(b)(1) because the party whose name was not disclosed in a prior action in accordance with this rule failed to show that it had been "substantially prejudiced" by this non-disclosure.

02-08-10 GRIFFIN V. BURLINGTON VOLKSWAGEN, INC., and AUGUSTINE STAINO, A-2727-08T1

Under the broad form of arbitration clause in a motor vehicle retail order form, which required parties to arbitrate "any claim . . . that may arise out of or relat[e] to the purchase" of the car and "the financing thereof[,]" the purchaser is required to arbitrate his claims of false arrest, false imprisonment and malicious prosecution, based on the seller reporting the car stolen when purchaser retained car despite seller's demand for its return after financing could not be obtained.

02-08-10 STATE V. JASON LEWIS and JEROME LEWIS - A-2066-08T4

Where police stopped vehicle at night in a neighborhood known for drug sales based on evidence providing probable cause to believe vehicle contained drugs, persons other than the occupants who also had reason to believe the vehicle contained drugs may have had access to the vehicle, and there was a substantial question whether other police officers would have been available to detain the occupants while an application was made for a warrant, the State established the exigent circumstances required to justify a search of the vehicle under the automobile exception to the warrant requirement. Moreover, the validity of the search was not affected by the fact that drugs were found in a closed leather case because, when the automobile exception applies, the police may search every part of the vehicle and its contents that may conceal the object of the search.

02-05-10 NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.M.- A-1843-08T3

This appeal required determination of (1) the criteria for application of the "suspended judgment" provision of N.J.S.A. 9:6-8.51(a)(1); and (2) whether successful completion of a period of suspended judgment necessarily leads to the removal of the underlying finding of abuse or neglect from the central registry maintained by the Division pursuant to N.J.S.A. 9:6- 8.11. The opinion concludes that (1) the suspended judgment provision of N.J.S.A. 9:6-8.51(a)(1) is generally applicable when a Family Part judge has held a dispositional hearing and is not prepared to enter a final order returning the child to the parent or placing the child with the Division, but instead proposes to give the parent an opportunity to maintain the family unit based upon adherence to the particular remedial requirements established pursuant to N.J.S.A. 9:6-8.52(a); and (2) successful completion of a period of suspended judgment does not result in expungement of the underlying finding of abuse or neglect. Because there is no basis to conclude that the Legislature intended the suspended judgment provision of N.J.S.A. 9:6-8.51(a)(1) to provide the equivalent of Pretrial Intervention in abuse and neglect cases, New Jersey Division of Youth & Family Services v. C.R., 387 N.J. Super. 363 (Ch. Div. 2006) is overruled.

02-04-10 VIRGINIA COCKERLINE, as General Administratrix and Administratrix of the ESTATE OF MARK COCKERLINE v. ERIKA MENEDEZ, et al - A-4635-07T1

Res ipsa loquitur permits a jury to infer a defendant was negligent; it does not permit inference of proximate cause. Amounts received as social security survivor and death benefits and as PIP death benefits must be deducted from a jury's verdict under the collateral source statute, N.J.S.A. 2A:15-97.

02-03-10 PARISH V. PARISH- A-1837-08T2

The Appellate Division reviewed a Family Part order dismissing "as moot" a post-judgment motion to enforce litigant's rights. The motion judge did not review the merits of plaintiff's application and directed the parties to present their disputes to the parenting coordinator designated in the Dual Final Judgment of Divorce.

Additionally, the judge conditioned the filing of all future motions on the requirement that the parties and their attorneys first conduct a four-way settlement conference to resolve the disputes and certify that these efforts proved unsuccessful.

Finally, the court imposed an award of counsel fees. The Appellate Division reversed the order due to the motion judge's failure to substantively address plaintiff's ELR motion, as the issues presented were not moot and ripe for disposition. The parties had previously sought review by, and received the recommendations of, the parenting coordinator. More importantly, the Appellate Division reversed the mandated restriction on the parties' exercise of the right to file post-judgment ELR motions in the absence of a specific finding of the need to control frivolous litigation. Finally, because the counsel fee award was based on a determination that was reversed, it too was reversed.

Judge Ashrafi concurred with that portion of the opinion reversing the dismissal of plaintiff's motion because the requested relief was not moot, and the award of counsel fees. Judge Ashrafi dissented from that portion of the opinion reversing the pre-filing condition imposed on future motions.

02-01-10 GONZALEZ v. WILSHIRE CREDIT CORPORATION- A-2634-08T2

The Appellate Division held that a series of standardized agreements to cure default between a non-debtor mortgagor and the mortgage servicer are covered by the Consumer Fraud Act, even when executed postforeclosure.

02-01-10 LAKE VALLEY ASSOCIATES, LLC, T/A UNIVERSITY PARK APARTMENTS V. TOWNSHIP OF PEMBERTON- A-4040-07T2

Plaintiff, the owner of a large apartment complex in Pemberton Township, 2brought an action in lieu of prerogative writs facially challenging the constitutionality and statutory validity of Ordinance No. 5-2006, adopted by the Township in May 2006. The ordinance imposes certain registration obligations and other regulatory requirements on landlords within the Township. Among other things, plaintiff argued that the ordinance is not for a valid public purpose; violates due process and separation-of-powers principles of the United States Constitution and the New Jersey Constitution; and is preempted by the Hotel and Multiple Dwelling Law, N.J.S.A. 55:13A-1 to - 28, and by other state statutes. The Appellate Division affirmed the Law Division's dismissal of plaintiff's claims, substantially for the cogent reasons expressed by Assignment Judge John A. Sweeney in his written opinion of February 13, 2008, from which the Court quoted at length in this published opinion.

01-29-10 STATE V. RAHEEM VENABLE STATE V. MALIK SIMMONS - A-5237-06T4/A-5527-06T4 (consolidated)

Defendants are not entitled to a reversal of their convictions based on the trial court's announcement that members of the victim's and defendants' families would not be allowed in the courtroom during jury selection in light of the fact that defendants did not object to such exclusion of family members and the absence of any indication that family members were in the courthouse and desired to attend jury selection.

01-28-10 STATE OF NEW JERSEY VS. DAVID RIVERA a/k/a DAVID J. RIVERA- A-1724-08T4

Reviewing defendant's challenge to the admission of Alcotest results relied upon to support a per se violation of N.J.S.A. 39:4-50, the Court rejected a suggested methodology requiring the State to truncate the intermediate calculations of the relative and absolute upper tolerance limits when discerning whether the Alcotest readings obtained were valid. The Appellate Division concluded the Supreme Court in State v. Chun, 194 N.J. 54, cert. denied, __ U.S. __, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008) expressed no preference for truncating the various interim calculations on Worksheet A, which would have the resultant effect of lowering the range of tolerance below that approved by the Court with the concomitant result of falsely increasing the number of invalid Alcotest results, precluding justifiable prosecutions for per se violations of N.J.S.A. 39:4-50.

01-27-10 IN THE MATTER OF RIVERVIEW DEVELOPMENT, LLC, WATERFRONT DEVELOPMENT PERMIT NO. 0908-05-0004.3 WFD 060001- A-1843-08T3

Townhouse residents, whose views of the Hudson River and the New York City skyline will be fully or partially blocked by a proposed high-rise development, do not have the right to a trial-type hearing in the Office of Administrative Law to contest the high-rise developer's application to the Department of Environmental Protection ("DEP") for a waterfront development permit under the Coastal Zone Management Regulations, N.J.A.C. 7:7E-1.1 to -8A.5. The Appellate Division affirmed the DEP Commissioner's determination that such residents lack "a particularized property interest sufficient to require a hearing on constitutional or statutory grounds," as is necessary under N.J.S.A. 52:14B-3.2c. However, such residents do have standing to challenge on appeal the merits of the issued permit.

01-27-10 PAUL ROSEN, ET AL V. PETER KEELER, ET AL- A-0555-08T2

An easement appurtenant cannot be transferred or assigned for the benefit of another tenement separate from the dominant estate unless the instrument creating it demonstrates a clear intent to grant such a right. A provision in the instrument stating that the easement runs with the land and inures to the benefit of the grantees and their "assigns and successors in title" does not grant such a right but is limited to subsequent owners of the dominant estate. Therefore, the purported assignment of the easement right to a third party is unenforceable.

01-26-10 STATE OF NEW JERSEY V. SCOTT S. KUENY- A-2812-07T4

The trial judge did not abuse his discretion in denying a mistrial after defendant suffered a medical incident at the end of the court day and he returned the next day. The judge gave an adequate instruction at the beginning of the following day which suggested that defendant did suffer some "illness" and was "treated," as opposed to "faking" an event for sympathy. Defendant police officer's conviction for misconduct in office was reversed because his use of someone else's bank card left in an ATM machine and taking cash from her account was not sufficiently related to his office to constitute official misconduct by the officer while on vacation and out of his jurisdiction.

01-25-10 CFG HEALTH SYSTEMS, LLC V. CORRECTIONAL HEALTH SERVICES - A-2577-07T3.

It is appropriate under some circumstances to grant a party adversely affected by a judgment leave to intervene for the purpose of pursuing an appeal if a party with a similar interest who actively litigated the case at the trial level has elected not to appeal. Under the competitive contracting in lieu of public bidding sections of the Local Public Contracts Law, a local contracting agency may reject all contract proposals and repeat the competitive contracting process if it reasonably concludes that its consideration of the original proposals violated the provisions or purposes of the Law.

01-22-10 STATE OF NEW JERSEY V. MARK HICKS- A-4338-07T4

The Appellate Division remanded for a new PCR hearing because assigned counsel's perfunctory performance failed to meet the standards articulated by the Supreme Court in State v. Webster, 187 N.J. 254 (2006) and Rule 3:22-6(d).

01-19-10 KATHRYN POTE V. CITY OF ATLANTIC CITY, ET AL.- A-2544-08T3

The Appellate Division affirmed the summary judgment dismissal and denial of reconsideration of plaintiff's premises liability complaint against SMG, the manager of Boardwalk Hall, for injuries allegedly sustained when she slipped and fell on an icy patch of snow on the Atlantic City boardwalk about ten feet away from Boardwalk Hall's property as she was approaching the building to attend a show. The Court perceived no just public policy consideration or sound basis to create another exception to the general rules governing premises liability and expand the duty established by our current case law to hold SMG liable under the circumstances of this case.

01-19-10 STATE v. JOSEPH ALLEN LEE- A-4977-07T4

Attempted murder is not embodied in N.J.S.A. 2C:25-19a and therefore is not subject to the Domestic Violence Surcharge under N.J.S.A. 2C:25-29.4.

01-13-10 JESSE J. COOPER, SR. v. BARNICKEL ENTERPRISES, INC.- A-1813-08T3

Injuries resulting from accident which occurred while offsite employee was driving for a cup of coffee in employer's vehicle on his coffee break was compensable under the workers' compensation law because the accident occurred within a reasonable distance from the place at which the off-site employee was waiting to perform a work related meeting and the coffee break was equivalent to that of an on-site employee.

01-11-10 JOSEPH BERNSTEIN, ET AL. V. STATE OF NEW JERSEY, ET- AL.- A-1601-08T3

In this prisoner-on-prisoner homicide, the decedent's estate sued a number of Department of Corrections (DOC) officials as well as administrators and employees of East Jersey State Prison, alleging common law tort and federal civil rights claims based on defendants' alleged delayed response to the attack, resulting in the inmate's death. Specifically, plaintiff claimed that the attack was delayed by: (1) a prison policy dictating supervision of the mess hall from protective cages above the floor rather than direct floor patrol and (2) a violation of a standing order by assembling two emergency response teams rather than one before interceding. Plaintiff also sought to hold defendants liable for failing to remove the attacking inmate from the prison's general population, as he suffered from psychological problems. The Appellate Division affirmed the summary judgment dismissal of plaintiff's complaint finding the individual State defendants immune from State tort claims under N.J.S.A. 59:5-2(b)(4) in the absence of any evidence of willful misconduct. As to the federal civil rights claims under 42 U.S.C.A. § 1983, the Court also found no proof of a constitutional violation, that is, no evidence defendants acted with a deliberate indifference to a substantial risk to decedent in violation of the Eighth Amendment's "cruel and unusual punishment" ban. Moreover, because the Court discerned no violation of a clearly established constitutional right, the Court held the individual State defendants have a qualified immunity from liability under 42 U.S.C.A. § 1983.

01-11-10 ROBERT J. TRIFFIN v. AUTOMATIC DATA PROCESSING, INC.- A-5533-07T3

In this case that arises from the Appellate Division remand in Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237 (App. Div. 2007), the Court affirmed the trial judge's decision and hold that the finding that plaintiff committed a fraud upon the court was supported by adequate, substantial, and credible evidence and that the sanctions imposed for such fraud were permissible and reasonable.

01-07-10 STATE v. CIANCAGLINI- A-2785-08T4

In this appeal from a DWI conviction, after prior separate DWI and refusal convictions, the Court disagreed with the holding of State v. DiSomma, 262 N.J. Super. 375 (App. Div. 1993), and hold that the prior refusal conviction does count toward making this a third offense. Our holding is consistent with a line of cases both before and after DiSomma concluding that a prior DWI conviction counts toward enhancement of the sentence imposed for a refusal conviction. See, e.g., State v. Tekel, 281 N.J. Super. 502 (App. Div. 1995). The Appellate Division also held that double jeopardy does not bar reinstatement of the sentence originally imposed in the municipal court for a third DWI offense, which was reduced in the Law Division to a sentence for a first DWI offense.

01-06-10 J.T.'s TIRE SERVICE, INC. and EILEEN TOTORELLO V. UNITED RENTALS NORTH AMERICA, INC.- A-2989-08T2

A woman entrepreneur claimed that defendant stopped buying tires from her company because she refused to submit to sexual demands from defendant's branch manager. The Appellate Division held that her allegations of quid pro quo sexual harassment stated a cause of action under the Law Against Discrimination, N.J.S.A. 10:5- 12(l).

 

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