Opinion Summaries

     This medical malpractice case arises from an infant who presented at birth with jaundice.  The infant's attending pediatrician, who was selected by the parents, was not employed by the hospital, but had clinical privileges to practice there.  At the time of the jaundiced infant's discharge, the pediatrician orally advised the parents they could safely place the child at home in indirect sunlight.  That advice indisputably conflicted with then-existing national standards of pediatric care and the hospital's own internal discharge policy.

     The parents took the infant home, but the child's jaundice worsened.  Three days later, the parents returned the infant to a different hospital, where it was discovered that the baby had sustained brain damage and cerebral palsy.  The parents sued the attending pediatrician, the hospital, and the chair of the hospital's department of pediatrics for medical malpractice.

     After plaintiffs settled with the pediatrician, plaintiffs pursued additional recovery from the hospital and the department chair. They stressed the hospital's by-laws specifically obligate its department chairs to maintain "continuing surveillance and oversight" of "all [p]ractitioners with [c]linical [p]rivileges and of all [a]ffiliates" at the hospital, and to "enforce" within their departments the hospital's "policies," "including initiating corrective actions and investigations of clinical performance."  Plaintiffs also stressed deposition testimony that at least five other pediatricians at the hospital had been known to give similar discharge advice recommending treatment with indirect sunlight.  The department chair testified at his deposition that he had been unaware of those instances. 

     The motion judge granted summary judgment to the codefendants, finding the chair had no notice of the attending physician's divergent discharge practices and that imposing liability in these circumstances would violate case law prohibitions on "captain of the ship" theories of liability.

     This court affirms the dismissal of the claims against the department chair and hospital.  Although the court does not agree that the "captain of the ship" prohibition bars plaintiffs' supervisory liability claims, summary judgment was proper because plaintiffs' expert failed to delineate with reasonable specificity the standards of care for supervisory liability that the department chair and the hospital allegedly breached. 

     In this nursing home negligence case, a jury awarded plaintiff, Joseph J. Emmons, III, administrator of the Estate of Joseph J. Emmons, Jr., $100,000 based on a common law negligence claim and wrongful death.  The jury found plaintiff established liability under the New Jersey Nursing Home Responsibilities and Rights of Residents Act (NHA), N.J.S.A. 30:13-1 to -19, but failed to prove proximate cause or damages under the NHA.  Plaintiff sought counsel fees as a prevailing party under the NHA.

     The court held plaintiff is not a prevailing party under the NHA because he failed to prove proximate cause and damages under the NHA.  Proving an NHA violation alone is not enough.  The court affirmed the trial court's denial of counsel fees and costs under the NHA.

     Defendant was arrested when he was nineteen years of age and later indicted for several weapons offenses, including second-degree unlawful possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b)(1) (count two); and fourth-degree possession of a handgun while under the age of twenty-one, in violation of N.J.S.A. 2C:58-6.1 (count three).  He moved to dismiss counts two and three, contending that those charges violated his right to bear arms under the Second and Fourteenth Amendments of the United States Constitution.  The trial court denied the motion as to count two but granted it as to count three.  On leave granted, defendant appeals from the portion of the order denying the dismissal of count two, and the State appeals from the portion of the order dismissing count three.

     The court holds that New Jersey's statute prohibiting people under the age of twenty-one from possessing a handgun except in defined circumstances is constitutional because the statute is consistent with our Nation's "historical tradition of firearm regulation."  United States v. Rahimi, 602 U.S. 680, 691 (2024) (quoting New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 17 (2022)).  Therefore, the court reverses the portion of the trial court order that dismissed count three and remands with direction to reinstate count three.

     Concerning count two, this court has previously held that a defendant who does not apply for a permit to carry a handgun lacks standing to challenge a criminal charge of possession of a handgun without a permit.  State v. Wade, 476 N.J. Super. 490, 495-96, 511 (App. Div. 2023), leave to appeal denied, 255 N.J. 492 (2023).  Because defendant did not apply for a permit, our decision in Wade controls.  The court therefore affirms the portion of the trial court order that denied defendant's motion to dismiss count two.

Federal and State law do not conflict in this regard: if an employer hires an undocumented worker in violation of federal law, the employer is required to compensate the person in a manner consistent with state law for work they actually perform. Here, neither Lopez’s immigration status nor the barter arrangement with his employer provided grounds to deny his wage claim for work already performed. The Court provides guidance about an employer’s record-keeping burden and about how to assess the admissibility of evidence of an invalid SSN in wage and hour cases.

     In this case of first impression, the court must interpret recent amendments to N.J.S.A. 2C:58-3(c)(5).  The statute previously prohibited the issuance of a permit to purchase a handgun (PPH) and a firearms purchaser identification card (FPIC) "[t]o any person where the issuance would not be in the interest of the public health, safety or welfare."  In 2022, the Legislature amended the statute by concluding it with the phrase:  "because the person is found to be lacking the essential character of temperament necessary to be entrusted with a firearm." L. 2022, c. 131, § 2. 

     Mikhail Polatov appeals a June 13, 2024 Law Division order denying his application for a FPIC and a PPH under the recent amendment.  The trial court denied his application because he lacked "the essential character of temperament necessary to be entrusted with a firearm" under N.J.S.A. 2C:58-3(c)(5).  The trial court reasoned that Polatov was not truthful to the court about the disposition of and circumstances surrounding a 2011 shoplifting offense in New York that was resolved through an administrative dismissal. 

     The court reverses.  Polatov's PPH and FPIC application should have been granted because the trial court's reliance on its credibility determination regarding the 2011 offense, which does not disqualify his application, is not a basis under the amended N.J.S.A. 2C:58-3(c)(5) to deny the application. 

The TRC did not exceed its statutory authority in granting Jibsail’s 2017 or 2022 tidelands licenses because the plain language of the Tidelands Act authorizes the TRC to set or modify a pierhead line in the context of reviewing an application for a specific tidelands license, rather than requiring the TRC to establish pierhead lines around all New Jersey islands uniformly in advance.

N.J.S.A. 59:2-1.3(a)(1) does not categorically bar the imposition of vicarious liability on a public entity for acts of sexual abuse outside the scope of a teacher’s employment, and plaintiffs’ vicarious liability claims should not have been dismissed at the pleading stage. The Court adopts a standard for the determination of vicarious liability claims asserted against public schools pursuant to the statute. As to the second issue, a public school does not bear a fiduciary duty to a student.

N.J.S.A. 59:2-1.3(a)(1) does not categorically bar the imposition of vicarious liability on a public entity for acts of sexual abuse outside the scope of a teacher’s employment, and plaintiffs’ vicarious liability claims should not have been dismissed at the pleading stage. The Court adopts a standard for the determination of vicarious liability claims asserted against public schools pursuant to the statute. As to the second issue, a public school does not bear a fiduciary duty to a student.

The 200-month FET was arbitrary, capricious, and unreasonable. Adopting an analysis similar to the Appellate Division’s analysis in Berta v. State Parole Board, 473 N.J. Super. 284 (App. Div. 2022), the Court holds that, to impose an extended FET beyond the presumptive term, the Parole Board must (1) overcome the presumption by explaining why the presumptive term is clearly inappropriate and (2) explain why the extended FET that the Board imposed is necessary and appropriate. Any extended FET imposed should be no longer than needed to address the likelihood of recidivism, which is the primary concern of the applicable statute and regulations.

     On leave granted, the court was asked to determine whether three allegedly incorrect dates contained in a certification in lieu of oath, submitted pursuant to Rule 1:4-4(b) that rendered the subsequently issued search warrants stale, should have been corrected by the motion court as typographical errors to defeat a motion to suppress evidence, or whether an evidentiary hearing should have taken place to determine whether the dates in the certification were erroneous.  The State argues it should be allowed to introduce evidence not presented to the issuing judge to prove the controlled drug buys relied upon in the certification took place in 2023, not 2022.  It also contends the errors were so obvious the issuing judge may have assumed the events in fact took place in 2023 and found probable cause to issue the warrants.

     The court rejected both arguments and affirmed the suppression of the evidence. It concluded the issuing judge had no basis to issue the warrants because nothing contained within the four corners of the certification indicated the dates were typographical errors.  On its face, the certification did not demonstrate probable cause to search because it was based on stale information.  Also, only information presented to the issuing judge could have been considered by a reviewing court, and the State was barred from introducing extrinsic evidence beyond the four corners of the warrant application.  In so concluding, the court reiterated New Jersey does not recognize an officer's good faith alone as an exception to the warrant requirement and cautioned that precision is essential in any ex parte application where a person's constitutionally protected privacy interests are at stake.   To overlook the State's responsibility in preparing and reviewing the certification would "inevitably and inexorably diminish the quality of evidence presented in search-warrant applications."  See State v. Novembrino, 105 N.J. 95, 153 (1987).

     Resident, S.G., who identifies as female, is civilly committed to the Special Treatment Unit ("STU") under the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38.  She appeals from the Department of Correction's ("DOC") January 4, 2024 final agency decision denying her request to transfer from the STU to a women's-only correctional facility.

     S.G. alleges discrimination, invoking both the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to 14.1, and the Equal Protection Clause.  She asserts gender-based indignities, claims to have suffered harassment, and argues the DOC failed in its duty to protect her dignity and identity.

     Careful review of the record, in light of the legislative intent and established principles, yields the following: The DOC is bound by law to house sexually violent predators separately from inmates serving criminal sentences and designates the STU as the sole treatment facility for all adjudicated SVPs.  This classification is not arbitrary, capricious, or unreasonable.  It serves the statutory purpose—protection of society and provision of treatment.

     The LAD prohibits exclusion and indignity yet does not compel sex-segregated facilities for civilly committed persons.  The Equal Protection Clause is not offended where legitimate, nondiscriminatory reasons govern placement.  The record shows S.G. is not denied equal dignity, nor uniquely burdened on account of her gender identity. 

     The court affirms the DOC final agency decision.

     In this action in lieu of prerogative writs appeal, the court addressed whether a municipal governing body was required to provide a discernible reason for denying an applicant's request for a resolution of local support (ROS), N.J.A.C. 17:30-7.10(b)(9), that was necessary to secure a Cannabis Retailer License (CRL) from the State of New Jersey Cannabis Regulatory Commission (CRC) under the Cannabis Regulatory Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), N.J.S.A. 24:6I-31 to -56.

     Defendant the City of Burlington Common Council (City Council) appealed from the trial judge's order denying its motion to dismiss plaintiff Higher Breed NJ LLC's (Higher Breed) complaint for failure to state a claim upon which relief can be granted and the order granting Higher Breed's motion for summary judgment and requiring the City Council to issue the ROS. 

     The court held that the municipal governing body must provide a discernible basis for denying the ROS application to inform the interested parties and the public of its reasons, as well as afford meaningful appellate review.  In the present case, the court affirmed the trial judge's order in part because the City Council's resolution failed to provide a material basis for denying Higher Breed's ROS application.  However, the court reversed the trial judge's order in part and remanded the matter to the City Council, providing an opportunity to adopt a resolution that includes a sufficient basis for its decision.

     In this appeal, the court set forth the applicable legal standards in applications for phased developments before a land use board requesting preliminary and final subdivision/site plan approval for property located in an area designated for redevelopment pursuant to N.J.S.A. 40A:12A-1 to -22.   The court held, in phased development applications, a land use board shall consider whether each phase of the application meets the subdivision and site plan requirements of the municipality's zoning ordinance, as well as the purposes and goals of the redevelopment plan when the property is located in a redevelopment area.

     Plaintiff Route 440 Developers, LLC, appeals from an order of the Law Division upholding the denial by the Planning Board of the City of Jersey City of its multi-phase, mixed-use development application for property located within the Route 440-Culver Redevelopment Area in Jersey City.  The court affirmed determining the trial court did not err in upholding the Board's denial of preliminary and final subdivision relief to plaintiff for Phase I of its application and dismissing the remaining portions of the application based on plaintiff's failure to satisfy a major purpose and goal of the Plan by providing a lot designation for the rail line right of way independently in Phase I, rather than reserving the lot designation for later phases of the development.

LOCAL PROPERTY TAXATION - CHAPTER 91; FALSE RESPONSE

Tax Court

MT Freehold BPE LLC v. Freehold Township; Docket Nos. 000052-2025; 000054-2025; 000056-2025.

MT Freehold BPE Two LLC v. Freehold Township, Docket No. 000055-2025.

Opinion by Sundar, P.J.T.C. decided     February, 2026. 

For plaintiff - Michael Kurpiewski (Zipp & Tannenbaum LLC, attorneys); 

For defendant - Wesley E. Buirkle (DiFrancesco Bateman, Kunzman, Davis, Lehrer & Flaum, PC, attorneys).

HELD:  N.J.S.A. 54:4-34 (“Chapter 91”) bars the owner of an income-producing property from appealing an assessment if the owner has rendered a “false or fraudulent account” in response to a Chapter 91 request.  Defendant moved to dismiss the complaints on grounds that plaintiffs’ responses were false because they provided the monthly gross base rental income instead of the requested annual gross base rental income, which thus understated the subject properties’ rental income.  Defendant contended that the term “false” does not require or presuppose intent, therefore, plaintiffs should be barred from appealing the assessments imposed on the subject properties. 

The court found that the term “false” for purposes of Chapter 91 implicates a deliberate intent to falsify or misreport information and should not be interpreted literally. Based on the evidence and testimony, the court found that plaintiffs made an inadvertent mistake when they provided the full and true monthly gross base rental income instead of the annual amount (monthly amount multiplied by twelve).  The court therefore denied defendant’s motions to dismiss the complaints under Chapter 91.

(21 Pages)

LOCAL PROPERTY TAXATION – REAL PROPERTY – EXPANDABLE CONDOMINIUM – PHASING – FANNIE MAE - FHA

Tax Court:  G.S. Realty Corp. v. Township of Brick; Docket Nos. 009174-2020, 5103-2021, opinion by Cimino, J.T.C., decided February 26, 2026.  For plaintiff – C. Justin McCarthy and Steven W. Ward (Giordano, Halleran & Ciesla, PC); for defendant – Scott W. Kenneally (Starkey, Kelly, Kenneally, Cunningham, Turnbach & Yannone).

Held:  A phased expandable condominium development precludes a developer from shifting the expenses of unannexed phases to condominium unit owners.  The Federal National Mortgage Association (Fannie Mae) endorses phasing to reduce mortgage loan defaults by unit owners.  Despite phasing, the developer wants to shift the taxes for unannexed phases to the unit owners.  The court determines that Fannie Mae phasing along with the Federal Housing Authority (FHA) - inspired condominium taxing statute precludes shifting the tax burden to unit owners.

(30 pages)

None of the individual errors that Butler alleges require that his convictions be overturned, but the accumulation of errors in this case deprived him of his constitutional right to a fair trial. 

Because defendant could not establish that the existing jury pool violated his right to trial by a jury drawn from a representative cross-section of the community, the Court agreed with the trial court’s determination not to dismiss the jury pool that had been summoned before the Governor issued EO 411. 

     Defendant was charged in a twenty-four-count indictment arising from the assault and murder of his former girlfriend and the mother of his children. Before trial, the court granted the State's motion to admit the victim's out-of-court statements under the forfeiture-by-wrongdoing exception to the hearsay rule, N.J.R.E. 804(b)(9), asserting defendant had caused the victim's unavailability with the purpose of preventing her testimony regarding his recent assault of her.  At trial, the court denied defendant's request for a passion/provocation manslaughter charge, N.J.S.A. 2C:11-4(b)(2), finding sexual jealousy or rejection did not constitute adequate provocation. 

     On appeal, defendant argued the court had erred in admitting the victim's statements without adequate findings that he acted with the sole purpose of preventing her testimony, rather than out of jealousy or during a violent confrontation.  Defendant also challenged the trial court's refusal to issue a passion/provocation manslaughter charge and the sentence imposed.

     The court affirmed, rejecting defendant's argument regarding the admission of the victim's statements and agreeing with courts of other jurisdictions that it need not be shown under this hearsay exception that rendering the witness unavailable was the sole reason for the defendant's conduct.  The court also rejected defendant's remaining arguments about the trial court's failure to charge passion/provocation manslaughter and the sentence imposed.

The Erlinger error is subject to harmless error review and was harmless under the circumstances of this case.  However, as written, N.J.S.A. 2C:44-3(a) is inconsistent with the principles announced in Erlinger.  The Court calls upon the Legislature to revise this provision to comport with Erlinger’s mandate.

     Defendants, Gregg and Millner, appeal the trial court's denial of their motions to dismiss indictments for failure to register as a sex offender, N.J.S.A. 2C:7-2(c)(3) and (a)(3), respectively. 

     Both defendants relocated to New Jersey from other states where they were convicted of sex crimes and had to register in those states as sex offenders.  Defendants did not register in New Jersey when they relocated here. They were arrested here on unrelated charges, and police then discovered defendants' obligation to register as sex offenders in their former states.  They were charged with failure to register. 

     In separate grand jury proceedings, the State had to show some evidence of each element of the crime of failure to register under N.J.S.A. 2C:7-2:  (1) defendants were required to register in New Jersey, and (2) defendants knowingly failed to register.  Among other things, the State told grand jurors that defendants were obligated to register as sex offenders in their former states, and that this status alone created a duty to register as a sex offender in New Jersey.  The two grand juries indicted defendants for failure to register. 

     Defendants moved to dismiss the indictments, arguing the State failed to meet its burden to show some evidence on each element of the crime of failure to register. Defendants argued that N.J.S.A. 2C:7-2(b)(3) required the State to make a preliminary finding that an out-of-state sex offender's crime is "similar to" a New Jersey Megan's Law offense before charging that offender with failing to register in New Jersey.  Denying the motions to dismiss, the trial court found the State met its burden because the State established the "similar to" analysis would have been satisfied had it been completed.  The trial court also determined that defendants' awareness of their obligation to register in their former states constituted a knowing failure to register in New Jersey. 

     On appeal, the court  reviewed N.J.S.A. 2C:7-2, including subsections (a)(3), (b)(3) and (c)(3),  and found  that an out-of-state sex offender's requirement to register in the state where they have been convicted does not, by operation of law, eliminate the Legislature's clear due process mandate in N.J.S.A. 2C:7-2(b)(3).  The court concluded that the Legislature expressly declared that the State's obligation to perform a "similar to" analysis is required prior to filing a failure to register charge under N.J.S.A. 2C:7-2(b)(3).  As a result, the court reversed the trial court's orders and remanded for further proceedings.