Published Appellate Court Opinions

     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.

     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.

     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. 

     The matter before the court addresses the legal process in determining the responsibility of making life decisions on behalf of an incapacitated person. The parties do not dispute that F.M.W. was incapacitated and in need of a guardian.  She lived with her sister, R.W., her only relative.  R.W. appeals from the probate court's October 10, 2024 order appointing the New Jersey Office of the Public Guardian of Elderly Adults (Public Guardian), and not R.W., as her sister's guardian. 

     The court concludes that R.W. was not afforded due process –– the opportunity to call witnesses and conduct cross-examination –– and the probate court did not make findings of facts and conclusions of law as required by the court rules.  However, before R.W.'s appeal was decided, F.M.W. died on July 29, 2025; thus, R.W.'s appeal "technically became moot."  M.R. v. N.J. Dep't of Corr., 261 N.J. 322, 335 n.7 (2025).  Nevertheless, because the procedural issues raised in this appeal are significant and "'capable of repetition, yet evading review,'" ibid. (quoting Mistrick v. Div. of Med. Assistance & Health Servs., 154 N.J. 158, 165 (1998)), this appeal is "justiciable despite [F.M.W.'s] passing," ibid. (quoting State v. Cassidy, 235 N.J. 482, 491 (2018)). Had the court been afforded the opportunity to decide this appeal prior to F.M.W.'s passing, the court would have remanded the matter to the probate court to conduct an evidentiary hearing to allow the parties to call witnesses and conduct cross-examination and to issue findings of facts and conclusions of law.

     Plaintiff Thomas Paciorkowski, who is an attorney, purchased three electric bikes manufactured by defendant Jetson Electric Bikes, LLC (Jetson).  He sued defendant, contending that Jetson made misrepresentations and engaged in several unconscionable commercial practices in advertising and marketing its electronic bikes.  The complaint asserted individual claims and sought to certify a class action.

     Plaintiff appeals from an order denying his motion to certify a class and dismissing his claims for lack of standing.  The trial court reasoned plaintiff did not have standing to bring any of his claims because he had not suffered a personal injury from using the Jetson electric bikes.

     The court holds plaintiff cannot represent the proposed class while he is also serving as the proposed representative plaintiff. Those dual roles involve inherent conflicts of interest, which the New Jersey Supreme Court identified over forty years ago.  See In re Cadillac V8-6-4 Class Action, 93 N.J. 412, 439-40 (1983).  Plaintiff argued that the rule set forth in In re Cadillac should no longer be followed.  The court rejects that position.  Accordingly, the court affirms the portion of the order that denied certifying a class action. 

     Concerning plaintiff's individual claims, the court determines plaintiff has alleged damages and ascertainable losses, despite not suffering personal injuries.  Thus, he had standing to bring his individual claims.  Accordingly, the court reverses the order to the extent it dismissed plaintiff's individual claims.  On remand, plaintiff can only pursue his individual claims.

     In this appeal, the court addressed in a Title 9 proceeding, N.J.S.A. 9:6-8.21 to -8.73, whether a child subjected to alleged abuse or neglect has the right to a fact-finding hearing after the New Jersey Division of Child Protection and Permanency (Division) entered a settlement with her adoptive parents.  The court also addressed the child's rights to sibling visitation under the Child Placement Bill of Rights Act (CPBRA), N.J.S.A. 9:6B-1 to -6, and the Siblings' Bill of Rights (SBR), L. 2023, c. 1, §§1-3 (codified at N.J.S.A. 9:6B-2.1 to -2.2 and amending N.J.S.A. 9:6B-4). 

     Appellant Mil.Z. (Mary) appealed from the Family Part judge's order denying her request for a Title 9 abuse or neglect hearing after she objected to the judge's finding that the Division's settlement with defendants D.P.-Z. (Dawn) and S.E.Z (Sara) sufficiently established abuse or neglect against her under N.J.S.A. 9:6-8.21(c)(4).  Mary additionally challenged the judge's denial of her request for a plenary hearing on sibling visitation with her siblings, Ma.Z. (Maya) and Mi.Z. (Mindy), and best interests evaluations. 

     The court determined that a Family Part judge is permitted to accept a Title 9 abuse or neglect settlement if the judge is satisfied that the settlement is in the child's best interests after considering the abuse or neglect claims, the settlement stipulations, the defendant's factual admissions, the child's Law Guardian's objection, and any other relevant factors.  In the present case, the court reversed because the judge made insufficient factual findings as to Dawn's and Sara's conduct that constituted abuse or neglect.  The court also reversed the judge's denial of Mary's request for a plenary hearing on sibling visitation and best interests evaluations.  The court held Mary has the presumptive right to sibling visitation under the CPBRA and the SBR and had made a sufficient prima facie showing of resulting harm from the judge's denial of sibling visitation.  Further, the court held that the record supported the need for independent sibling bonding and best interests evaluations by trained medical experts, and the judge erred in not separately addressing Maya's needs, because her autism spectrum disorder did not prevent a trained medical professional from effectively conducting an evaluation. 

     Plaintiffs, two West Windsor Township residents, filed a complaint challenging the township's adoption of a zoning ordinance, which permitted a 5,000,000 square-foot commercial/industrial project.  The eight-count complaint raised multiple claims.  Counts one through five challenged the notice and adoption of the ordinance.  Counts six through eight challenged the township planning board's approval of a co-defendant’s planning board preliminary and final site plan and subdivision application. 

     After defendants’ Rule 4:6-2(e) motion, the trial court dismissed the first five counts of plaintiffs' complaint as time-barred.  After a bench trial, the trial court dismissed counts six through eight of the complaint on the merits.   

     On appeal, the Appellate Division affirmed the trial court's dismissal of counts one through five pursuant to Rule 4:69-6(a).  Further, the Appellate Division concluded that the trial court did not abuse its discretion when it declined to enlarge the filing deadline for plaintiffs, as they failed to make a sufficient showing under the public interest exception.  Since plaintiffs' claims presented no justiciable issue and lacked standing, they were subject to the time bar, and not cognizable under the Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62.  The Appellate Division concluded that the trial court did not err when it found no personal notice to plaintiffs was required, as the master plan reexamination exception to N.J.S.A. 40:55D-62.1 applied.

     The Appellate Division next affirmed the trial court's dismissal of counts six through eight.  It concluded there was sufficient credible evidence in the record to support the trial court's conclusion that the township planning board's approval of a co-defendant's site plan was not arbitrary or capricious.  Further, the Appellate Division concluded that the trial court did not err by considering the impact of vehicular traffic in its determination that the planning board's waiver approvals were not arbitrary and capricious. Finally, the Appellate Division held that the trial court properly deferred to the board's well-supported findings, and affirmed its order dismissing plaintiffs' complaint in its entirety.  

     The parties appealed from their respective denials of final restraining orders (FROs) against each other.  S.M.T. alleged a series of incidents regarding physical abuse, forced sexual acts, and coercive control within the parties' marriage.  Although the trial court concluded S.A. committed the predicate act of simple assault and recognized a prior incident of simple assault against S.M.T., it did not make specific findings with respect to the sexual assault allegations or coercive control and ultimately denied S.M.T. an FRO.  It reasoned the proven incidents of physical assault amounted to "marital contretemps" for which an FRO was not necessary to protect S.M.T. from future harm because any risk could be handled in the existing family dissolution matter.  The court disagreed and concluded S.M.T. proved the need for an FRO because she proved simple assault, sexual assault, coercive control, and established the likelihood of a risk of continued domestic violence.  A pending dissolution matter is not the appropriate forum to address future risk of domestic violence, unless the parties have mutually agreed to civil restraints.  

     The court concluded if the predicate act involves physical force and violence, "the risk of harm is so great that the inquiry [regarding the secondary analysis of Silver v. Silver] can be perfunctory."  J.D., 207 N.J. at 488.  In these cases, "the decision to issue an FRO 'is most often . . . self-evident.'"  A.M.C. v. P.B., 447 N.J. Super. 402, 417 (App. Div. 2016) (quoting Silver, 387 N.J. at 127).  It would be rare for proven physical assault to be deemed mere marital contretemps, and the court found no reported decision where marital contretemps was relied upon as a basis for denying a restraining order where physical assault was a proven predicate act. 

     Additionally, effective January 8, 2024, the PDVA was amended to include coercive control among the statutory factors courts must consider when determining whether to issue an FRO.  N.J.S.A. 2C:25-29(a)(7). (“Any pattern of coercive control against a person that in purpose or effect unreasonably interferes with, threatens, or exploits a person's liberty, freedom, bodily integrity, or human rights with the court specifically considering evidence of the need for protection from immediate danger or the prevention of further abuse.”)  Coercive control is not among the predicate acts enumerated in the PDVA; rather, it is analyzed pursuant to the second prong of Silver.

     The trial court failed to make findings regarding the allegations of coercive control in its analysis of prong two.  S.M.T. detailed S.A.'s acts of coercive control in limiting her travel, controlling the family's finances and her access to money, surveillance by various electronic means, and depriving her of sleep using lights, television noise, and spilling water on her. 

     The trial court stated:  "It's clear from the contentions that it's somehow recognized by [S.M.T.] that [S.A.] feels he has a right to exert certain authority over her, and again, the [trial c]ourt doesn't pretend to understand the actual tenets of the faith or culture in that regard."  The court noted actual tenets of faith and culture are not relevant as to whether acts of physical assault, sexual abuse, or coercive control have occurred. 

     This interlocutory appeal requires consideration of the ethical obligations incumbent on attorneys who, having represented a client in complex litigation but now working in a non-lawyer capacity, subsequently seek to advance interests aligned with that client's adversaries.  The particular circumstances presented concern conduct by James Conlan, a former partner at Faegre Drinker Biddle & Reath LLP who represented defendants Johnson & Johnson in this multi-county talc-based powder litigation. 

     Conlan, as attorney for J&J, participated for nearly two years in confidential strategy and settlement analysis of the talc litigation.  After departing his firm, Conlan started a new enterprise, Legacy Liability Solutions, that pursued methods to acquire and resolve those same legal liabilities. Conlan, as Legacy's CEO, actively collaborated with attorneys from Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., a leading plaintiff's firm in the talc litigation. 

     J&J moved to disqualify Beasley Allen from representing plaintiffs in the litigation.  The trial court denied the motion.  Conlan's prolonged access to J&J's privileged information, followed by collaborative efforts with their most prominent adversary, raises doubt of the most serious order.

     The trial record leaves the court with clear concern for the preservation of trust intrinsic to the attorney-client relationship. As such, the court finds that as CEO of Legacy, Conlan's association with Beasley Allen violated RPC 1.9(a) and 5.3 and the appropriate remedy was disqualification.  The judgment of the trial court is reversed. 

     Respondent landlord initiated a summary action for nonpayment of rent against appellant and her husband.  Appellant vacated the apartment due to allegations of domestic violence, while her husband remained on the premises.  A default judgment for possession was entered against the husband alone, after which a warrant of removal was executed. Subsequently, appellant paid the outstanding rent, and with respondent, executed a consent to surrender the property.  She later moved to vacate the judgment for possession entered against her husband and to seal the court record. 

     Appellant now appeals from the trial court's order denying her motion to vacate the judgment of possession entered against the husband and seal the court record.  The court addresses two novel legal questions:  whether a consent order to surrender property to a landlord constitutes a judgment for possession in landlord-tenant cases under our governing law; and whether such a consent order remains a public record for seven years. 

     The court concluded a consent order to surrender property to a landlord, based on its substantive nature and underlying purpose, is fundamentally different from a judgment for possession. Specifically, it reflects a voluntary agreement rather than an adjudication of the landlord's right to possession.  The court held a consent order is subject to the sealing provision of Rule 1:38-3(f)(11) and is shielded from public view. 

          In this public corruption matter, the court considers the State's procedural and substantive challenges to a Law Division order dismissing a 111-page, multiple count, "speaking indictment" that followed a protracted grand jury presentation.  The detailed State indictment charged George E. Norcross, III, Philip A. Norcross, William M. Tambussi, Dana L. Redd, Sidney R. Brown, and John J. O'Donnell – purported members of the alleged "Norcross Enterprise" – with conspiracy to violate the New Jersey Racketeer Influenced and Corrupt Organizations Act (RICO), N.J.S.A. 2C:41-1 to -6.2, conspiracy to commit theft by extortion and criminal coercion, official misconduct, and other offenses. 

          Distilled to its essence, the indictment asserted the Enterprise members exerted pressure on private individuals and entities, and public officials, to advance the Enterprise's goals related to redeveloping the City of Camden. One of those goals allegedly was accomplished by obtaining three redevelopment projects, two of which yielded some Enterprise members lucrative tax credits. 

          The motion judge was persuaded by defendants' arguments that the indictment, on its face, failed to allege the criminal offenses charged and violated the applicable statutes of limitations.  In his decision, the judge accepted as true the indictment's allegations and all reasonable inferences drawn therefrom.   

          As a threshold matter, the court reaffirms a speaking indictment is subject to the same facial review as non-speaking indictments.  Although the court assumes the truth of all facts alleged in the indictment, the court is not persuaded it must afford the State the benefit of all reasonable inferences drawn from those facts. 

          On de novo review, the court concludes the charges arising from the RICO and two of the three general conspiracies, and the official misconduct offense, were untimely, and the remaining charges failed to state the offense charged or were time-barred, or both.  The court therefore affirms the dismissal order for slightly different reasons than the motion judge.

          In reaching its decision on the time-barred conspiracy counts, the court considers, as a matter of first impression, whether the receipt of ongoing, otherwise lawful payments – here, tax credits – tolls the applicable statute of limitations.  Persuaded by federal law, the court holds the long-term, recurring award of tax credits does not extend the statute of limitations for a conspiracy offense. 

          The court similarly considers the novel issue underscoring the State's theory that the receipt of a benefit extended the statute of limitations for an official misconduct charge when the indictment did not assert an express agreement to perform the act of misconduct in exchange for that benefit. The court concludes the mere receipt of a benefit under those circumstances does not extend the life of an official misconduct charge indefinitely. 

          In view of its decision, the court finds it unnecessary to reach defendants' contentions that the acts alleged in the indictment amounted to no more than "hard bargaining" and that such conduct was not subject to the relevant statutes.  Similarly, the court does not consider the arguments raised by the attorney defendants, as supported by amici curiae, that the indictment of attorneys for actions involving the practice of law would exert a chilling effect, detrimental to lawyers and their clients.  

     The issue before us, one of first impression, is whether the Newark Board of Education (School Board) needs prior approval of the Commissioner of Education under the Educational Facilities Construction and Financing Act (EFCFA), N.J.S.A. 18A:7G-1 to -48, to pursue Superior Court litigation to enforce its contractual reversionary rights to property it transferred to the Newark Housing Authority pursuant to a Site Disposition and Development Agreement (agreement).  The agreement provided the School Board with rights of reversion if the property is not developed for "housing, redevelopment and economic development" purposes within three years of the school's transfer. 

     The School Board sued the Housing Authority and Friends of Team Charter Schools, Inc. (FTCS)—which purchased the property from the Housing Authority for use as a charter school—in the Chancery Division to enforce its reversionary rights because the property was not used in accordance with the agreement. 

     After FTCS's motion to dismiss was denied, it petitioned the Commissioner to require that the School Board obtain the Commissioner's approval under the EFCFA before the School Board can litigate its purported reversionary rights. The Commissioner denied relief, deciding that the School Board's litigation to reclaim ownership was "neither a school facilities project nor a land acquisition as contemplated under EFCFA and the related regulations; and that neither EFCFA nor the related regulations required [the School Board] to seek approval from the Commissioner prior to initiating the enforcement litigation."  The Commissioner added the EFCFA would only take effect if the School Board reacquired the property and used it for a school facilities project.

     We conclude that under our standard of review, the Commissioner's decision was not arbitrary, capricious, or unreasonable because the Commissioner properly interpreted the EFCFA.  The Commissioner did not–– nor do we––determine whether the School Board has reversionary rights to the property through its agreement with the Housing Authority. That must be decided in the School Board's pending Superior Court litigation. 

     In this case of first impression, the court addresses whether the New Jersey Earned Sick Leave Law ("ESLL"), N.J.S.A. 34:11D-1 to -13, required defendant County Concrete Corporation to provide paid sick leave to plaintiff-employees, on behalf of themselves and other similarly situated employees.  The court further examined the qualifications for employers to utilize the "construction industry" exemption at N.J.S.A. 34:11D-1 as well as the procedural and legal standards required to assert ESLL claims for similarly situated employees pursuant to N.J.S.A. 34:11D-5 and N.J.S.A. 34:11-56a.

     Defendant appeals from a Law Division order granting plaintiffs partial summary judgment determining defendant's leave policies were non-compliant with the employee notice requirements of the ESLL.  Defendant also appeals from the trial court's determinations (1) it was not entitled to the ESLL's "construction industry" exemption; (2) its paid leave policy was non-compliant with several sections of the ESLL; (3) awarding post-trial damages to the unnamed plaintiffs, comprised of 103 similarly situated employees.  Having considered the parties' arguments, the extensive factual record, and applicable legal principles, the court affirmed the trial court's order and judgment. 

     The court also referred suggested pre-trial procedures concerning ESLL claims to the Civil Practice Committee for consideration.

          In this matter, the court addressed whether the trial court erred in finding the parties have children in common, leading the trial court to dismiss plaintiff's complaint pursuant to the Victim's Assistance and Survivor Protection Act (VASPA), N.J.S.A. 2C:14-13 to -21.

          Plaintiff and S.S. divorced in 2019 and have since been involved in extensive post-judgment litigation regarding their two minor children.  He subsequently alleged defendant, who at the time was S.S.'s boyfriend and is now her husband, sexually abused the children.  Plaintiff filed an order to show cause concerning the alleged acts of abuse.  In March 2020, the trial court entered an order barring defendant "from any further contact with the children pending further order" of the court.  This order remains in effect to this day.

          In 2024, plaintiff filed a VASPA complaint against defendant alleging cyber harassment and obtained a temporary protective order (TPO).  The trial court entered an order to show cause directing plaintiff to show cause why his VASPA complaint and TPO should not be dismissed for lack of jurisdiction.  Following oral argument, the trial court determined it would only have jurisdiction over the VASPA matter "if the part[ies] could not be defined as . . . victim[s] of domestic violence" under N.J.S.A. 2C:14-14.  It explained it would not have jurisdiction if the parties had a "child in common" under N.J.S.A. 2C:25-19(d) of the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.

          The trial court then noted, relying on D.V. v. A.H., 394 N.J. Super. 388 (Ch. Div. 2007), although plaintiff and defendant do not "biologically" have children in common, "they [do] have . . . step-children in common."  It explained, while "child in common" is not defined under the PDVA, plaintiff and defendant were in a "family-like setting[]."  It ultimately found step-children fell within the meaning of a "child in common" under N.J.S.A. 2C:25-19(d).  Therefore, the trial court concluded it had no jurisdiction over the VASPA matter, dismissed the claim, and vacated the TPO.

          The court concluded the trial court improperly relied on D.V.  In distinguishing D.V., it noted the plaintiff and the defendant in that case both had parental rights, even though the plaintiff was not a biological parent.  394 N.J. Super. at 390.  The facts here are not analogous.  Not only does defendant not have any parental rights, but he has also been barred from having any contact with the children for over five years.  The court observed this was far afield from the "judicially joined" parties involved in D.V. Under the present circumstances, the court determined the parties do not have a "child in common" for the purposes of N.J.S.A. 2C:25-19(d), and plaintiff should have been permitted to proceed with his VASPA action.

          This appeal involves state constitutional challenges raised by plaintiffs, a labor union and an anti-smoking advocacy group of Atlantic City casino employees, to the casino exemption within the New Jersey Smoke-Free Air Act, N.J.S.A. 26:3D-59(e).  The Act generally prohibits smoking in indoor public places and workplaces in New Jersey but expressly excludes, among a few other places, certain designated areas within casinos and casino simulcasting facilities.  The Legislature has repeatedly considered, but not enacted, amendments to eliminate the casino exemption.

          Representing thousands of New Jersey casino workers exposed to secondhand smoke, plaintiffs brought suit in the Chancery Division, seeking injunctive and declaratory relief on the grounds that the exemption (1) violates a state constitutional "right to safety," (2) comprises unconstitutional "special legislation," and (3) denies equal protection under the New Jersey Constitution.  They emphasized the documented science and the legislative findings in the Smoke-Free Air Act confirming that sustained exposure to secondhand smoke can produce severe, and at times fatal, adverse health consequences. 

          Joined by intervenors from the casino industry and certain other labor unions, the State defendants argued the casino smoking exemption is constitutional as a valid legislative policy choice grounded in an irrefutable rational basis.  They principally contend the imposition of a ban will drastically reduce the number of casino patrons in Atlantic City and thereby cause a massive loss of casino revenues, jobs, and State tax proceeds.  To support that contention, respondents presented to the motion judge a 2021 industry-funded study projecting such drastic losses of patronage and revenues. Plaintiffs contend the industry study and its dire predictions of revenue loss are greatly exaggerated and unreliable.  They have presented a competing 2022 study that sharply critiques the industry study and makes its own contrary predictions.

          The motion judge considered these clashing assertions based solely on written submissions, without hearing any testimony and apparently without the benefit of any discovery.  The judge denied both preliminary and permanent injunctive relief and dismissed all of plaintiffs' claims with prejudice.  The judge did find that plaintiffs, in their arguments for a preliminary injunction, had shown irreparable harm may be caused to the employees through their continued exposure to secondhand smoke in their workplace. Nevertheless, the judge ruled their constitutional arguments unavailing.

          This court affirms the judge's denial of plaintiffs' request for a preliminary injunction, on the record as presented in the order to show cause.  The Supreme Court has yet to hold that right to pursue and obtain health and safety is a fundamental standalone right.  The court also affirms the judge's denial of preliminary injunctive relief on plaintiffs' "special legislation" claim. 

          However, in the distinctive circumstances presented here, this court vacates the premature disposition of the permanent injunction request and the dismissal of the lawsuit.  After discerning no fundamental right is at stake, the judge applied a mistaken "rational basis" approach to plaintiffs' state equal protection challenge without conducting a fulsome balancing of the competing interests under the three-factor test prescribed by our State Supreme Court.  The judge also improvidently accepted at face value respondents disputed economic contentions and the untested premise that ending the smoking exemption will inexorably result in drastic revenue and job losses. The case is accordingly remanded to develop the record, make appropriate findings, and perform the required constitutional balancing.

     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.

     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.