Opinion Summaries

     In 2020, plaintiff filed a complaint against defendant Roselle Board of Education, alleging violations of the New Jersey Child Sex Abuse Act, N.J.S.A. 2A:61B-1, negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, and sought compensatory damages. Plaintiff alleged he was sexually abused on two occasions in 2004 and 2005 by a middle school math teacher.  He did not seek any treatment or counselling through the years or incur any medical expenses.

     On leave to appeal, the court affirmed the trial court's order granting defendant summary judgment because plaintiff could not establish he incurred the $3,600 monetary threshold of medical expenses to seek relief under the Tort Claims Act (TCA), N.J.S.A. 59:9-2(d).  C.W. v. Roselle Bd. of Educ., 474 N.J. Super. 644, 653 (App. Div. 2023).  Although plaintiff was barred from seeking pain and suffering damages, the court advised he was "not foreclosed from other available damages under the statute."  Ibid. 

     Back before the trial court, plaintiff conceded he was not seeking economic damages but instead non-economic damages for disability, impairment and loss of enjoyment of life.  The trial court again granted defendant summary judgment, finding the claimed damages were part of pain and suffering within the TCA and since plaintiff could not meet the monetary threshold, he could not pursue those damages.

     While plaintiff's second appeal was pending, the Legislature amended the TCA in March 2025 to eliminate the verbal and monetary thresholds in sexual abuse cases. See N.J.S.A. 59:2-1.3(a)(2); N.J.S.A. 59:9-2(d).  The legislation states the threshold amendment "shall take effect immediately."  P.L. 2025, c. 29.  Plaintiff submitted a supplemental merits brief asserting the amended TCA applied to his case under the time-of-decision rule as the matter was pending appeal at the time of its enactment, or alternatively, the amendment should apply retroactively to his claims.

     The court determined neither argument was applicable to plaintiff's circumstances.  The time-of-decision rule is only meant to apply when the Legislature intended for retroactive application.  In addition, the parties, trial court and this court had relied on the longstanding statute and fifty years of decisional law regarding the monetary threshold for medical expenses as a requisite for recovering damages against a public entity during the five years of this litigation.

     As to retroactivity, there was no express language that the Legislature intended its modification to be retroactive to pending cases and "[s]ettled rules of statutory construction favor prospective rather than retroactive application of new legislation" to avoid unfair outcomes. Pisack v. B & C Towing, Inc., 240 N.J. 360, 370 (2020) (quoting James v. N.J. Mfrs. Ins., 216 N.J. 552, 563 (2014)).  Nor was there any indication that the amendment was curative.

     After concluding the amendment was not retroactive and, therefore, not applicable to plaintiff's claims, the court affirmed the summary judgment order, declining to depart from the well-established law that plaintiff's claims of post-traumatic stress disorder and severe depression are considered as pain and suffering damages and fall within the limitations under N.J.S.A. 59:9-2(d).  Since plaintiff could not meet the monetary threshold under the then-existing TCA, summary judgment was warranted.

     At issue in this appeal is whether the commencement of an offender's mandatory parole supervision (MPS) term imposed pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, is tolled when an offender is released from incarceration in the Department of Corrections (DOC) but is detained in the custody of Immigration and Customs Enforcement (ICE).

     Upon service of his maximum term of incarceration, Wright was released from the DOC to ICE, where he was detained for over three years.  The New Jersey State Parole Board (Board) tolled the commencement of Wright's five-year MPS term until his release from ICE custody to the community.

     NERA requires both that the MPS term commence "immediately upon the defendant's release from incarceration" and that "[d]uring the term of MPS the defendant shall remain in release status in the community."  Because those two requirements could not co-exist in this case, the court looked to legislative intent to resolve the ambiguity in the statute.

      To combat parolee recidivism, the Legislature enacted NERA to increase prison time for offenders who commit the most serious offenses.  For NERA offenses, a sentencing court must impose an eighty-five-percent parole ineligibility term and a three- or five-year MPS term, during which the offender is supervised by the Board as if on parole. The Legislature required MPS because NERA offenders likely serve the maximum sentence imposed without reaching their discretionary parole eligibility date. 

     The goals of parole supervision are to protect the public and assist offenders to reintegrate into society as productive individuals.  Because an offender in ICE custody is neither in the community nor being supervised by the Board, the goals of NERA would be frustrated if MPS were deemed served during that time period.

     In affirming the Board's decision, the court distinguished this case from State v. Njango, 247 N.J. 533 (2021), because the fundamental fairness concerns implicated in that case are not present.

There are valid reasons not to disclose records in particular cases to ensure safety and security at correctional institutions and to avoid interfering with an inmate’s rehabilitation, among other concerns. See Thompson, 210 N.J. Super. at 123. But because the plain language of N.J.A.C. 10A:71-2.2 bars disclosure in all cases, it violates settled constitutional principles.

     This landlord-tenant case examines the rule of law first announced in Montgomery Gateway E. I. v. Herrera, 261 N.J. Super. 235 (App. Div. 1992).  In that case, the Appellate Division held that when a landlord renews a tenant's lease and accepts rent under that new lease, it waives its right to terminate the tenancy based on the tenant's prior nonpayment of rent. 

      In the present matter, the court reaffirms and applies the Montgomery Gateway rationale, rejecting the plaintiff-landlord's contention that its renewal of the lease and acceptance of rent could not have operated as a waiver of its eviction right because the lease renewal was compelled by federal statutes and regulations governing Section 8 subsidized housing.  The court rejects the premise of that argument, holding that federal statutory law, regulations, and a handbook issued by the U.S. Department of Housing and Urban Development (HUD) all make clear that plaintiff was not compelled to renew the lease and had the ability to terminate defendant's tenancy or allow the lease to become a month-to-month tenancy. Furthermore, plaintiff's lease with defendant, which was based on a HUD model lease, explicitly states that plaintiff may decline to execute a renewal lease at the end of the term.

     The court also rejects plaintiff's contention that because the tenant made payments toward rent arrears, thereby acknowledging her debt, she came to the court with unclean hands and should not have been allowed to secure a waiver of plaintiff's right to evict based on those past arrears.  The court holds that defendant's efforts to avoid eviction while simultaneously making payments toward the arrears do not constitute the sort of wrongdoing contemplated by the unclean hands doctrine. 

     Nor is the court persuaded by plaintiff's contention that the Montgomery Gateway waiver rule should not apply because it renewed the lease to preserve its Low-Income Housing Tax Credit.  The court concludes that any economic incentives associated with the Low-Income Housing Tax Credit have no bearing on the rationale that undergirds the Montgomery Gateway rule. 

     Finally, the court addresses the argument plaintiff raised for the first time on appeal that even if renewal was not actually required by law, plaintiff reasonably believed it was compelled to renew the lease.  The court is not persuaded by this novel argument, noting that even were it to assume for the sake of argument that a landlord's subjective belief matters, plaintiff's claimed belief that it had no choice but to renew its lease with defendant is not reasonable in light of the federal statutory law, regulations, the HUD Handbook, and the terms of the lease itself.

     Plaintiff appealed from the trial court's order finding defendant Monmouth County Society for Prevention of Cruelty to Animals (MCSPCA) is not a public agency under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.  The question before the court was whether the MCSPCA—a non-profit entity that provides humane law enforcement services for the Monmouth County Prosecutor's Office (MCPO) under a Memorandum of Understanding (MOU)—is a public agency required to disclose records under OPRA.  The court concluded the MCSPCA is not a public agency under OPRA because the MCPO is not a political subdivision under N.J.S.A. 47:1A-1.1, but rather an office. Therefore, the MCSPCA is an instrumentality of an office, analogous to the volunteer fire company in Verry v. Franklin Fire District No. 1, 230 N.J. 285 (2017), which our Supreme Court held did not fall within OPRA's definition of a public agency.

    The court concluded the MCSPCA derived its authority to perform law enforcement functions from the MCPO through an MOU.  The MCPO has the discretion to appoint the MCSPCA but was not required to do so.  Moreover, the MCPO is responsible to supervise the law enforcement functions of the MCSPCA.  N.J.S.A. 4:22-14.4(a)(2)(b).  This delegation of authority does not transform the MCSPCA into a public agency for the purpose of N.J.S.A. 47:1A-1.1.  

     The court was mindful the law enforcement responsibilities of the MCSPCA are considered traditional government functions. However, that was not dispositive of whether the MCSPCA is a public agency subject to OPRA under our jurisprudence. Volunteer fire companies also exercise a governmental function.  See Verry, 230 N.J. at 300; N.J.S.A. 40A:14-70.1(b).  Nevertheless, the Verry Court determined the volunteer fire department at issue there was not a public agency under OPRA's statutory framework.  230 N.J. at 288. 

     Lastly, the court observed plaintiff is not without recourse.  Law enforcement-related documents may be requested through the MCPO based on its supervisory authority over the MCSPCA as set forth in N.J.S.A. 4:22-14.4(a)(2)(b) and the MOU.

     Plaintiff, a former special counsel to the Borough of Englewood Cliffs, brought an action for defamation against defendants based on documents distributed to Borough residents in advance of the then upcoming election.  Defendants filed applications for an order to show cause, seeking dismissal of the case and counsel fees pursuant to the Uniform Public Expression Protection Act (UPEPA), N.J.S.A. 2A:53A-49 to -61.  After converting the applications to motions, the trial court denied defendants' motions, finding plaintiff sufficiently had pleaded the elements of a defamation claim to survive defendants' motions and that whether plaintiff would be able to prove those elements required further discovery.  

     On appeal, defendants argued the trial court erroneously had relied on only the motion-to-dismiss standard of Rule 4:6-2(e) and erred by denying defendants' motions and permitting discovery. 

     The court affirmed the order.  The court held the trial court had properly applied the motion-to-dismiss standard pursuant to N.J.S.A. 2A:53A-55(a)(3)(b)(i) of UPEPA and the summary-judgment standard pursuant to N.J.S.A. 2A:53A-55(a)(3)(a) and -55(a)(3)(b)(ii) of UPEPA.  The court also held the trial court had not erred in permitting discovery pursuant to N.J.S.A. 2A:53A-52(d) of UPEPA.

     Petitioner H.F. appealed from the Board of Trustees (Board) of the Police and Firemen's Retirement System's final agency decision (FAD), which denied his application for accidental disability retirement (ADR) benefits, under N.J.S.A. 43:16A-7(a)(1), based on an exacerbation of a preexisting mental health disorder.  The question presented on appeal is whether the Board correctly interpreted Richardson v. Board of Trustees, Police & Firemen's Retirement System factor 2(c)—which provides that a traumatic event must be "caused by a circumstance external to the member (not the result of preexisting disease that is aggravated or accelerated by the work)"—as requiring the member to establish "a new onset of a [mental] disease."  192 N.J. 189, 213 (2007).  The Board determined it was not enough for a member to prove a disabling exacerbation of a preexisting mental health disorder caused from a traumatic event. 

     H.F., a former Sheriff's Officer, had applied for ADR benefits after suffering a mental disability, Post-Traumatic Stress Disorder (PTSD), from the shooting of an armed suspect.  The Board found H.F. satisfied the Supreme Court's established "mental-mental category of injuries" standard because he was involved in a "terrifying or horror-inducing event" that presented "actual or threatened death or serious injury."  Patterson v. Bd. of Trs., SPRS, 194 N.J. 29, 48, 50 (2008).  While the Board awarded two other officers ADR benefits after the shooting, H.F.'s were denied.  In denying his application, the Board adopted the Administrative Law Judge's initial decision that Richardson factor 2(c) was not satisfied because it was "[un]likely" the traumatic shooting "directly caused [H.F.] . . . a completely new case of PTSD" and that he instead suffered an exacerbation of "pre[]existing, dormant" PTSD from his military service. 

     The court reversed, holding the Board's heightened interpretation was unsupported because Richardson factor 2(c) is satisfied when a member demonstrates he or she has suffered a disabling exacerbation of a preexisting mental health disorder caused by an external traumatic event, which was not a result of regular work duties.  The undisputed credible medical evidence established H.F. suffered a mental health disability, an exacerbation of PTSD, from the traumatic shooting that was external to his regular police duties.  The court remanded the matter to the Board, directing that H.F. be awarded ADR benefits.

The Court reverses the judgment of the Appellate Division in part, substantially for the reasons stated in Judge Gilson’s thoughtful dissent. The Court addresses the standard for whether to instruct on passion/provocation manslaughter.

The court previously issued an unpublished opinion, with a dissent.  The court is now publishing the opinion, omitting certain sections. 

Defendant Michael Owens appealed his conviction and sentence for first-degree murder.  The majority vacated defendant's murder conviction because the trial court failed to sua sponte instruct the jury on passion/provocation as a lesser-included offense of murder.  The majority also held that the trial court erred in not severing a charge of aggravated assault of another victim from the trial of the murder offense.  

The dissent disagreed and would have rejected defendant's argument that there was clear evidence of passionate provocation.   The dissent also discerned no abuse of discretion in the trial court's denial of defendant's motion to sever the aggravated assault charge from the murder charge.

        The Legislature enacted the Environmental Justice Law (EJLaw), N.J.S.A. 13:1D-157 to -161 to "correct [the] historical injustice" of "New Jersey's low-income communities and communities of color hav[ing] been subject to a disproportionately high number of environmental and public health stressors . . . ."  N.J.S.A. 13:1D-157.  To accomplish its stated purpose, the EJLaw requires certain polluting facilities seeking approvals under existing environmental laws for a new facility, for expansion of an existing facility, or for renewal of an existing facility's major source permit, to prepare and submit, after a process that includes public participation, an independent analysis of the facility's environmental and public health stressors or impacts on the local overburdened community, the environmental justice impact statement, and to propose all feasible measures to avoid direct facility contributions to those stressors. 

         The Legislature directed that the Department of Environmental Protection "shall adopt . . . rules and regulations to implement the provisions of this [A]ct." N.J.S.A. 13:1D-161(a). After conducting numerous public engagement sessions seeking input from various stakeholders, and researching other approaches to environmental justice taken by the federal government and other states, DEP published its proposed rules and regulations at N.J.A.C. 7:1C (EJRules) with an extended ninety-day public comment period.

         After receiving written and oral comments from 497 individuals and entities, and conducting five public hearings, DEP issued an extensive response to the public's comments and then adopted its EJRules with non-substantial changes, effective April 17, 2023.

In these appeals, heard back-to-back, appellants New Jersey Chapter of The Institute of Scrap Recycling Industries, Inc. and Engineers Labor Employer Cooperative of the International Union of Operating Engineers Local 825 appeal DEP's adoption of the EJRules, contending they  (1) are ultra vires and exceed the statutory authority provided in the EJLaw; (2) ignore the ordinary meanings of basic terms; (3) are unconstitutionally vague and/or overbroad; and (4) are arbitrary and capricious. Amicus curiae appeared on behalf of appellants and DEP. 

The court affirmed the adoption of the EJRules, concluding they harmonize the Legislature's remedial and preventative goals articulated in the EJLaw. 

     The court concluded Section 402(a) of the Ending Forced Arbitration of Sexual Assault and Harassment Act of 2021 (EFAA), rendered arbitration agreements unenforceable as to all causes of action in a multi-claim dispute where plaintiff has pled a viable claim relating to sexual harassment.  In doing so, the court rejected the trial courts' decisions to bar from arbitration only those claims for which the underlying conduct related specifically to sexual harassment.  Instead, the court relied on the text of the EFAA that bars from arbitration a "case which . . . relates to . . . the sexual harassment dispute," and adopted the majority view of published federal and state court opinions that have considered the issue. 

     The court agreed, however, with both courts' decisions that, through the indulgent lens of a Rule 4:6-2(e) application, as pled plaintiffs' sexual harassment claims are not time-barred.

After a jury trial, defendant, a Newark police officer, was found guilty of theft by unlawful taking and official misconduct.  

Defendant began taking paid administrative sick leave in March 2018. The police department's policies prohibited officers on sick leave from engaging in any outside employment. Despite that prohibition, defendant worked a second job as a security guard at a hospital for seven months during his period of paid leave. Defendant took his full salary from the police department on the days he worked for the hospital, which he was not entitled to under the policies.

In the published portion of this opinion, the court vacates defendant's conviction of official misconduct under N.J.S.A. 2C:30-2(a).  As a matter of law, there is inadequate evidence to establish under subsection (a) that defendant's receipt of sick pay in violation of the department's leave policies amounted to "an unauthorized exercise of his official functions."

The court declines to address the hypothetical question of whether he could have been charged with and found culpable under subsection (b) of the official misconduct statute, N.J.S.A. 2C:30-2(b), concerning a defendant's failure to perform a legal duty.  The court affirms, however, defendant's conviction of theft under N.J.S.A. 2C:30-3.  

In the unpublished portion of the opinion, the court rejects various other arguments raised by defendant.  The court remands the case for resentencing and to address other specified matters. 

     Following a jury trial, defendant K.W. was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b).  The State alleged the victim was under the influence of ketamine and other substances at the time of the offenses based on toxicological testing of her blood and urine.  

     The State's toxicologist who performed the testing and prepared its toxicology report was unavailable to testify at trial.  In her stead, the State called the toxicologist's supervisor as permitted by our Supreme Court's decision in State v. Michaels, 219 N.J. 1 (2014).  In Michaels, the Court held a substitute expert can testify at trial without violating a defendant's right to confrontation if the expert reaches an independent opinion based on machine-generated testing data from testing performed by a non-testifying technician.  

     In this case, the supervisor had peer reviewed the original toxicologist's report, independently reviewed the toxicologist's report, notes, and data prior to trial, and formed an independent opinion that the results of the report were correct.  The supervisor was qualified as an expert without objection and testified based on the forensic testing performed by the original toxicologist.

     On appeal, defendant argued the supervisor's testimony violated his right to confrontation under the United States and New Jersey Constitutions based on the United States Supreme Court's decision in Smith v. Arizona, 602 U.S. 779, 144 S. Ct. 1785 (2024), which was decided after defendant's trial.  Defendant contended our Supreme Court's decision in Michaels was effectively overruled by Smith.  Defendant argued that Smith held a defendant's confrontation right is violated unless the individual who performed the forensic testing testifies at trial.

     The court affirmed.  It determined the supervisor's trial testimony violated the rule established in Michaels because she repeatedly read directly from the original toxicologist's report, rather than testifying to her own independent opinions.  Because defendant did not object at trial and affirmatively used the expert's testimony defensively, the court concluded his Confrontation Clause argument was waived. 

     The court also determined Michaels remains sound law after Smith.  Specifically, the court concluded machine-generated data is not the equivalent of a "testimonial statement" for Confrontation Clause purposes.  Therefore, if a substitute expert testifies at trial after reaching an independent opinion based on machine-generated data, as permitted by Michaels, there is no Confrontation Clause violation.

The Appellate Division’s judgment is affirmed substantially for the reasons stated in Judge Puglisi’s thorough and thoughtful opinion. The Court adds two comments.

Like the Appellate Division, the Court sees no reason to depart from the detailed analysis and sound reasoning in Judge Sabatino’s opinion in Morison.

Based on the plain language of the relevant statutes, a municipality in Sea Bright’s position is a governing body authorized to pursue withdrawal from a school district to form or enlarge a regional school district pursuant to N.J.S.A. 18A:13-47.11. Accordingly, Sea Bright may seek approval of its proposed withdrawal.

     Effective March 1, 2020, the Legislature amended the Fair Eviction Notice Act (the Notice Act), N.J.S.A. 2A:42-10.15 to -10.17, to allow tenants who are about to be evicted for non-payment of rent, "to submit a rent payment," and thereby avoid eviction.  See N.J.S.A. 2A:42-10.16a (the "Stack Amendment").[1]  In this appeal, the issue presented is whether the rent payment must be in the amount set forth in the judgment of possession (JOP) or the amount of rent due at the time the tenant makes the payment.  The court interprets the Stack Amendment to allow the tenant to pay the amount set forth in the JOP, because the JOP is the judicial determination that allows a landlord to evict a tenant under the Anti-Eviction Act (the A-E Act), N.J.S.A. 2A:18-61.1 to -61.12. 

     Plaintiff Fairkings Partners, LLC, a landlord, appeals from a May 9, 2024 order, which held that defendant Essence Daniels, a tenant, was required to pay the amount of unpaid rent set forth in the JOP to avoid eviction.  Because the court agrees with the trial court's interpretation of the Stack Amendment, we affirm.

[1]  The amendment is known as the Stack Amendment because Senator Brian P. Stack was the primary sponsor of the legislation.  The Stack Amendment has two sections:  section one is set forth in N.J.S.A. 2A:42-10.16a; and section two is set forth in N.J.S.A. 46:8-49.3.  Section two directs landlords to accept a rent payment made in accordance with N.J.S.A. 2A:42-10.16a.

         In this medical malpractice case arising out of a spinal surgery, the motion judge excluded the opinions of plaintiff's liability expert, a board-certified anesthesiologist and pain management specialist, on issues of medical causation.  The judge barred the expert from opining on causation issues for two reasons.

         First, at his discovery deposition, the expert agreed with defense counsel's question that he would "defer to a neurologist" on whether the surgery caused plaintiff to experience symptoms of pain in his leg and foot.  The judge treated that deposition answer as a concession by the expert that he is unqualified to opine on the causation issues in this case.

         Second, aside from the expert's supposed concession that he lacked suitable credentials, the judge barred his testimony about causation because his expert report conveyed inadmissible net opinions on the subject.

         Having excluded the anesthesiologist on these grounds, the judge denied plaintiff's request to extend discovery and enable him to present a neurologist as a substitute causation expert.  The judge therefore granted defendant summary judgment.  Plaintiff now appeals.

         Upon considering the divergent outcomes in cases from other jurisdictions, the court rules on the evidentiary issue as a matter of first impression under New Jersey law. 

         The court declines to adopt a per se rule that would treat a testifying expert's acknowledgment to "defer" to another expert who has a different or overlapping specialty as a categorical admission that the testifying expert lacks the qualifications to render opinions about the subject.  Instead, the context of the "deferral" must be evaluated on a case-by-case basis. 

         Here, the record is unclear about what the expert meant by his adoption of the term "defer" when opposing counsel questioned him at his deposition.  Hence, this court declines to rely on that basis to bar the expert’s causation opinions.

         Regardless of the "deferral" issue, the motion judge reasonably found that plaintiff's expert's conclusions about causation did not comport with the net opinion doctrine.  The court therefore sustains the motion judge on that basis alone and affirms summary judgment.

         On this appeal, the court addresses an issue of first impression in New Jersey and holds governmental requests for all data from cell towers, referred to as "tower dump" searches, require a warrant and the warrant must be particularized and supported by probable cause.  The court also holds that at the appropriate time the State must delete, and cannot retain, information it obtains concerning third-party users who were not involved in the crimes being investigated.

         Applying these holdings to the warrants being challenged on this appeal, the court holds that four communication data warrants, which compelled four cellular service providers to turn over large amounts of subscriber information from cell towers near a crime scene, and which resulted in the disclosure of information from over ten thousand cellular device users who were not involved in the crimes, were unconstitutional under both the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution.

         The court also holds, however, that the information identifying defendants would have inevitably been discovered through lawful means.  Consequently, the court affirms, on alternative grounds, the order denying defendants' motion to suppress the evidence obtained from the warrants as they relate to defendants.

Under the totality of the circumstances in this case, the police acted in an objectively reasonable manner to meet an exigency that did not permit time to secure a warrant. No bright-line rule governs the question of exigency, and determining whether the exigency exception to the warrant requirement applies requires courts to conduct an objective, fact-sensitive analysis. Drawing de novo legal conclusions from the facts found by the trial judge, the Court finds that here, time was of the essence, delay was not reasonable, and seizure of the DVR by the police without a warrant was justified by exigent circumstances.