Published Appellate Court Opinions

Plaintiff and decedent were partners for twenty-five years but never married.  During their relationship, decedent owned an income-producing property in fee simple, which, unbeknownst to plaintiff, he transferred during his lifetime to himself and plaintiff as joint tenants with rights of survivorship.  Decedent signed and recorded the transfer deed.  Plaintiff discovered her interest in the property only after decedent passed away.  Plaintiff sought injunctive relief to quiet title and was granted summary judgment, based on the trial court's holding that all elements of a valid inter vivos gift were present.

Defendant, who is decedent's son and administrator of the estate, urges reversal, claiming material issues of fact precluded summary judgment, specifically challenging the validity of the inter vivos gift of real property.

The court affirms.  Defendants presented no evidence to rebut the presumptions of donative intent, delivery and acceptance raised by the recorded transfer deed.  Acceptance is presumed subject to plaintiff's right to disclaim her interest within a reasonable time of becoming aware of it.  The additional element of relinquishment required for a valid inter vivos gift in New Jersey was also satisfied upon recordation of the transfer deed because decedent could not unilaterally restore his former fee simple estate.

         These consolidated cases require us to consider the scope of the statutory self-critical analysis privilege and determine whether materials developed as part of self-critical analysis conducted pursuant to a facility's patient safety plan are subject to discovery, disclosure, and admissible at trial.  This analysis hinges upon whether the facilities involved in these cases met the requirements imposed by the Patient Safety Act (PSA), N.J.S.A. 26:2H-12.23 to -12.25, and related regulations, rendering the materials sought by plaintiffs privileged and protected from disclosure.

Defendants argue the trial court erred by ruling incident/investigation reports concerning separate incidents resulting in injuries at two facilities are not privileged under the PSA and therefore discoverable.  The court reversed the trial court's orders. 

Surveying the case law interpreting the PSA and regulations, the court notes that the PSA was designed to reduce medical errors by promoting internal self-reporting and self-critical analysis related to adverse events and near misses by health care facilities.  N.J.S.A. 26:2H-12.25 renders the entire self-critical-analysis process privileged, shielding a health care facility's deliberations and determinations from discovery or admission into evidence.  N.J.S.A. 26:2H-12.25(g), does not condition the privilege on the finding of a Serious Preventable Adverse Event (SPAE).  That an event is not reportable does not abrogate the self-critical-analysis privilege.  The privilege unconditionally protects the process of self-critical analysis, the results of the analysis, and the resulting reports developed by a facility in its compliance with the PSA.  A court may not order the release of documents prepared during the process of self-critical analysis. 

N.J.S.A. 26:2H-12.25(c) requires health care facilities to report every SPAE that occurs in that facility to the Department of Health (DOH).  The documents, materials and information submitted to the DOH pursuant to this requirement are absolutely privileged and shall not be "subject to discovery or admissible as evidence or otherwise disclosed in any civil, criminal, or administrative action or proceeding."  N.J.S.A. 26:2H-12.25(f).  The statute provides no rationale or standard for parsing the contents of the documents, allowing for some portions to be privileged and others not privileged. 

However, when information sought to be protected from disclosure is not submitted to the DOH, the path to a privilege is different.  N.J.S.A. 26:2H-12.25(g) establishes the self-critical analysis privilege for internal documents that are the product of an 'investigative process that may or may not lead to reporting to the DOH.  Any documents, materials, or information developed by a health care facility as part of a process of self-critical analysis conducted pursuant to N.J.S.A. 26:2H-12.25(b) is not subject to discovery, disclosure or admissible as evidence in any civil, criminal, or administrative proceeding. 

Accordingly, if documents are submitted to the DOH pursuant to N.J.S.A. 26:2H-12.25(f) or meet the requirements of N.J.S.A. 26:2H-12.25(g), they are absolutely privileged and not subject to discovery.  Under either of those circumstances, a trial court does not engage in a redaction process and release the redacted document.  The entire document is statutorily protected from disclosure. 

At the same time, the PSA expressly preserves plaintiffs' right to discover facts through conventional means of discovery if obtained from any source or context other than those specified in the PSA.  Moreover, documents created outside the self-critical analysis process are subject to discovery. 

In each case, plaintiffs are free to engage in discovery of facts from non-privileged sources.  Additionally, if defendants produced voluminous medical records in response to a discovery request in either case, plaintiff may request, and the court may order, that defendants provide a "narrative to steer them to information contained in thousands of pages of medical records" in accordance with Brugaletta v. Garcia, 234 N.J. 225, 252 (2018).

This appeal presents a question of first impression regarding whether a claim can be made under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, where (1) an employer merges with another employer, (2) the employee does not apply for a position with the new employer, but (3) the employee contends that while all other employees were offered employment with the new employer, the employer did not extend the same offer, for reasons proscribed by the LAD.

Because of the LAD's remedial purpose, plaintiff's claim that the decision not to transition her employment from Graham Curtin, P.A. –– the closing employer –– to McElroy Deutsch, Mulvaney & Carpenter, LLP. –– the new employer –– was based on discriminatory factors may constitute a viable cause of action.  There are genuine disputes of material facts regarding whether the decision not to employ her at McElroy Deutsch, Mulvaney & Carpenter was, in fact, discriminatory.  Therefore, the court reverses the motion court's summary judgment dismissal of plaintiff's complaint.

In addition, because the motion court did not address the specifics of plaintiff's claims for wrongful termination, retaliatory termination, and aiding and abetting harassment based on age, disability, and use of disability leave,  we do not either.       

Plaintiff alleged his employer wrongfully terminated him based on a perceived disability in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50.  The disability allegedly perceived by defendants was that plaintiff was "suffering from COVID-19."  A Law Division judge granted defendants' motion to dismiss pursuant to Rule 4:6-2(e), finding plaintiff had failed to plead a viable cause of action for perceived disability discrimination under the LAD. 

The court affirmed, agreeing that even assuming defendants believed plaintiff had COVID-19, the facts plaintiff had alleged in his pleadings – on July 23, 2020, plaintiff felt ill in that he felt "cold, clammy, and weak"; he was able to report to work and stay until the end of the day; the next day he was able to go to a free clinic to obtain a COVID-19 test; he did not allege he had gone to a hospital or a doctor's office or that he had otherwise sought medical attention or treatment; some unspecified time later, he reported he "was feeling better"; he was feeling well enough that he felt able to and offered to return to work; and he was terminated on July 29, 2020, after he had reported his condition had improved and he felt well enough to work – were not sufficient to establish a prima facie case under the LAD that he was terminated because his employer perceived he had a disability.

Following the robbery of a store in West New York, police retrieved surveillance video from a nearby building and sent a still photo from the video to the New Jersey Regional Operations Intelligence Center (NJROIC) to help identify the perpetrator using facial recognition technology (FRT).  When the NJROIC could not find a match, police sent all the raw video footage to the Facial Identification Section of the New York Police Department Real Time Crime Center (NYPD RTCC), where a detective captured a still image, compared it against the center's databases, and offered defendant as a possible match.

Police subsequently included the photo from the NYPD RTCC along with five filler photos to construct photo arrays to show two eyewitnesses.  The eyewitnesses identified defendant as the perpetrator, and he was subsequently charged.

Defendant sent the State a discovery demand containing thirteen items seeking information regarding the FRT used to identify him.  He also moved to suppress the out-of-court identifications by the eyewitnesses.  The trial court conducted a Wade[1] hearing and denied the suppression motion.  Meanwhile the State obtained documents from the NYPD RTCC answering two of the thirteen discovery demands.  Defendant moved to compel the State to answer the remaining discovery requests, arguing the discovery was:  necessary to impeach the eyewitness identification; impeach the police investigation; and exculpatory.  Defendant's motion included a declaration from an FRT expert, detailing why the information sought was relevant and explaining the vulnerabilities of FRT, including problems with its reliability.  The trial court denied the motion to compel.

On leave granted, defendant re-asserts the arguments made to the trial court.  Amici joins in defendant's arguments on appeal.

The court held the discovery dispute was a separate matter than the Wade hearing and defendant was entitled to the discovery to construct a defense and for impeachment purposes.  Discovery into the FRT was necessary because it is a novel and untested technology, and no New Jersey court has addressed the issue.  Moreover, the discovery sought was attainable because:  the State raised no proprietary objections; had already obtained some discovery from the NYPD RTCC; and the items sought regarded defendant's identification and reliability of the identification process.

The court reversed and remanded for entry of an order compelling the State to provide the eleven remaining items of discovery.  The trial court is authorized to enter a protective order, order the in-camera review of the materials received from the State, and hold a Daubert[2] hearing, if necessary.

[1]  United States v. Wade, 338 U.S. 218 (1967).

[2]  Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993).

The court reverses the trial judge's denial of defendant's motion to suppress drugs police found following a motor vehicle stop based on observed traffic violations.  This case presents a novel question concerning the vehicle registration search exception to the warrant requirement.  That exception authorizes police to enter a lawfully stopped vehicle to conduct a pinpointed search for a registration certificate if the motorist is unable or unwilling to produce that document after having been provided a meaningful opportunity to comply with the police request for it.  State v. Terry, 232 N.J. 218, 222 (2018).  In this case, defendant parked and exited the vehicle before police could effectuate the stop.  The court addresses whether police may initiate a search under this "very narrow" exception when the detained motorist is outside the vehicle when police request the registration certificate, and the officer determines it would be unsafe to allow the motorist to reenter the vehicle to retrieve it. 

The court concludes that providing a detained motorist a meaningful opportunity to produce the registration certificate is an indispensable prerequisite to conducting a registration search—one that can only be excused when the motorist is unable or unwilling to comply with the police request for the vehicle credentials.  The court holds a motorist is not "unable" to produce a registration certificate within the meaning of the exception when the sole reason for such inability is a police officer's discretionary decision to prevent reentry.  The court reasons that any contrary interpretation of the registration search exception would undermine, if not eviscerate, the protection of privacy rights afforded by the meaningful-opportunity element by leaving its application to the mercy of unreviewable police discretion. The court declines to create a categorical exemption to the meaningful-opportunity requirement when police determine, in the exercise of their discretion, the motorist should not be allowed to reenter the stopped vehicle for reasons of officer safety. 

Although the police in this case were permitted for their own safety to place defendant in the police car and prevent him from reentering the detained vehicle throughout the investigative detention, that decision had the effect of foreclosing a warrantless registration search.  The court notes that strict enforcement of the meaningful-opportunity prerequisite in these circumstances would not deprive police the ability to investigate whether a car was stolen since they can obtain the information contained in the paper registration certificate by conducting a Motor Vehicle Commission database look-up.    

The court also addresses significant recent revisions to N.J.S.A. 39:3-29—the statute that prescribes a motorist's duty to possess and exhibit a registration certificate to police during a motor vehicle stop and that undergirds the registration search exception to the warrant requirement.  Under the revised statutory framework, motorists are no longer required to possess a paper copy of the vehicle registration certificate.  Rather, they are now permitted to keep and exhibit the registration certificate in either paper or electronic form.

To avoid the futility and needless privacy intrusion of a physical search for a paper document that may not even exist, and that need not be kept in the vehicle in any event, the court holds, prospectively, that police may not enter a detained vehicle under the authority of the registration search exception to search for a paper document without first asking the motorist whether the registration is kept in paper rather electronic form.

R.K. appeals from the denial termination of his registration obligations imposed by Megan's Law.  In June 2000, R.K. was convicted of endangering the welfare of a child and lewdness and was sentenced to a three-year term of probation conditioned upon 194 days in jail, which equaled time served, registration under Megan's Law, and Community Supervision for Life (CSL).

In April 2001, R.K. was convicted of engaging in prostitution as a patron, arising from an incident that took place in November 2000, less than seven months after he was convicted of endangering the welfare of a child. 

In February 2004, R.K.'s probation was revoked on multiple grounds, including committing the prostitution offense.  He was resentenced to a four-year prison term, which he completed on April 26, 2006.  He has not been convicted of any subsequent offense that has not been vacated. 

In December 2021, R.K. filed a motion to terminate his CSL and Megan's Law registration obligations.  The State opposed the motion, arguing R.K. does not meet the criteria for termination of Megan's Law registration obligations and that he remains a danger to the safety of others.  The trial court denied termination of his registration requirements.  R.K. appeals that decision.  The same order terminated CSL. 

On appeal, R.K. argues he is eligible under N.J.S.A. 2C:7-2(f) to terminate his Megan's Law registration requirements.  The court rejects his argument, finding it directly contrary to the clear and unambiguous language of N.J.S.A. 2C:7-2(f), established public policy, and the spirit of Megan's Law. 

N.J.S.A. 2C:7-2(f) allows Megan's Law registrants to apply for termination of registration requirements "upon proof that the person has not committed an offense with 15 years following conviction or release from a correctional facility for any term of imprisonment imposed, whichever is later, and is not likely to pose a threat to the safety of others." 

Within months of being sentenced to probation and released from jail, R.K. committed a prostitution offense, was convicted, and was sentenced.  The court holds that pursuant to the plain language of N.J.S.A. 2C:7-2(f), at the moment R.K. committed the new offense on November 27, 2000, he was permanently and categorically ineligible for termination of his Megan's Law registration requirements.  The fact he was subsequently found in violation of probation and resentenced to a prison term, which he has served, did not restart the clock for eligibility for termination of his registration requirements. 

The court granted defendant Shahaad I. Jones leave to appeal from an order denying his motion to suppress evidence — a handgun and large capacity magazine — seized without a warrant from his person.  The court finds the motion court erred by deciding the suppression motion without an evidentiary hearing because defendant's brief submitted in accordance with Rule 3:5-7(b) raised fact issues as to whether the warrantless search of defendant was justified under the plain view exception to the warrant requirement. 

The court also determined the motion court erred by concluding the statutory rebuttable presumption under N.J.S.A. 40A:14-118.5(q) — that, where law enforcement either fails to adhere to the statutory retention requirements found in N.J.S.A. 40A:14-118.3 to -118.5 for body worn camera (BWC) recordings, or intentionally interferes with a BWC's ability to accurately capture audio and video recordings, the law presumes exculpatory evidence was destroyed or not captured — applies only at trials and not at suppression hearings.  The court finds the plain language of N.J.S.A. 40A:14-118 does not support the motion court's determination and holds that because the statute expressly states the presumption is applicable in "criminal prosecutions," the rebuttable presumption applies in suppression hearings. 

The court reverses the motion court's order denying defendant's suppression motion and remands for further proceedings, including for a determination of whether defendant demonstrates an entitlement to the rebuttable presumption under N.J.S.A. 40A:14-118.5(q), and, if so, whether the State rebuts the presumption. 

Law enforcement officers arrested defendant when he appeared for what he understood to be a sexual encounter with a fourteen-year-old girl with whom he believed he had exchanged text messages on the two preceding days.   In fact, defendant exchanged the messages with a detective using two different cellular phone applications.  After seizing defendant's phone, the officers obtained a search warrant for the phone and an order requiring defendant provide the phone's passcode.   

The court reverses an order denying defendant's motion to quash the search warrant, which authorized a search of all the phone's data.  The court holds the affidavit supporting issuance of the warrant did not establish probable cause to search all the phone's data.  The court also determines probable cause to search all the data on a phone is not established by merely demonstrating the phone's data may include evidence of criminal activity.  The court further concludes a search of data on a cell phone must be limited to only the particular data for which law enforcement establishes probable cause to believe includes evidence of criminal activity, and a search warrant affidavit must define the locations of such data on the phone to the extent possible based on available technology.

M.H., a Tier II registrant, filed a motion to terminate his Megan's Law obligations under N.J.S.A. 2C:7-2(f).  The court affirmed the denial of registrant's application as he committed a failure to report offense within fifteen years of his conviction. 

The court also rejected M.H.'s facial and as applied due process and equal protection challenges to subsection (f).  In doing so, the court relied principally on the reasoning set forth in Doe v. Poritz, 142 N.J. 1 (1995), which upheld as constitutional Megan's Law's registration and community notification provisions, and In re Registrant A.D., 441 N.J. Super. 403, 420 (App. Div. 2015).  The court also rejected registrant's reliance on State in Interest of C.K., 233 N.J. 44 (2018), as that case addressed a juvenile's challenge to subsection (g), and the authority relied upon by the court in concluding subsection (g) was unconstitutional to juveniles is inapplicable to M.H.'s challenges to subsection (f). 

In this appeal from summary judgment in a breach of contract action, defendants argue plaintiff law firm violated rules of professional conduct by failing to disclose in its retainer agreement the unit of incremental billing – one tenth of an hour – it would utilize during the course of representation.  Plaintiff and defendants entered two retainer agreements, both of which disclosed a required initial deposit, the hourly rates of each attorney at the firm, and which party was responsible for certain administrative costs. 

Plaintiff represented defendants for more than two years pursuant to the parties' retainer agreements, sending monthly and bimonthly invoices throughout the duration demonstrating work billed in increments of one-tenth of an hour.  When defendants refused to remain current with outstanding fees, plaintiff ceased representation and instituted the breach of contract action. The trial court granted summary judgment.  Defendants urged reversal on appeal.

The court affirmed summary judgment as properly granted, and held the retainer agreement was lawful and ethical where, among other things, it sufficiently apprised the clients of the express terms of the agreement in accordance with RPC 1.5(b), and the parties' course of conduct for two years demonstrated assent to those terms.

          Plaintiffs are tenants at a luxury apartment building complex.  They claim they were defrauded by defendant landlords' knowingly false promises in its advertisements, brochures, and oral statements to prospective tenants that the apartment complex would have "elevated, 24/7 security" and that security personnel would be stationed 24/7 at a podium near each building's entrance.  Plaintiffs allege they relied on these representations in deciding to lease the apartments at the rent level charged. 

          Upon moving into the apartments, plaintiffs learned that the apartment complex's security cameras did not function, and security personnel were only stationed at the front of the building from approximately 11:00 a.m. to 5:00 p.m. on weekdays, with shorter hours on weekends, as opposed to being present 24/7, and at times were present during those hours when performing other assigned tasks. 

          The lease contained a three-day attorney review clause and had several addendums, including a waiver of the right to file a class action against the landlord.  The lease did not contain an arbitration agreement. 

          Plaintiffs filed a class action complaint alleging common law fraud and violations of the New Jersey Consumer Fraud Act against their landlord.  Prior to discovery or class certification, defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted, or, in the alternative, to strike plaintiffs' class action allegations.  Defendants argued the class action waiver in plaintiffs' lease agreements were clear and unambiguous and the lease was not a contract of adhesion.  Plaintiffs argued the lease was a contract of adhesion, the class waiver was unconscionable, and the caselaw upholding class action waivers were inapplicable because the contracts in those cases included an arbitration provision.  The trial court denied the motion in its entirety.  Defendants' motion for leave to appeal that interlocutory ruling was granted. 

          The court affirmed the denial of defendants' motion, holding that a waiver of the right to maintain a class action is unenforceable absent an arbitration agreement.  Noting that the class action waiver dismantled or disabled important procedures provided in our Part IV rules, and that the public policy of this state favors a class action where numerous claims involve a common nucleus of facts, the court adopts a bright-line rule that in the absence of an arbitration agreement, class action waivers are unenforceable as a matter of law and public policy. 

          In this appeal, the court considers the propriety of a Law Division order, excluding several allegations of sexual abuse against defendant that were memorialized in the child-victim's videorecorded statement to law enforcement.  The trial judge had admitted the entire statement under the tender-years exception to the hearsay rule, N.J.R.E. 803(c)(27).  At that time, the judge found the statement trustworthy, noting the alleged victim, who was eight years old when she gave her statement, would be called as a witness at trial.  

          Prior to trial, the State informed the defense the child was unable to recall all but one incident.  During the ensuing N.J.R.E. 104 hearing, the alleged victim, now fifteen years old, acknowledged she no longer recalled certain sexual conduct asserted in her tender-years statement.  The trial judge granted defendant's in limine motion, limiting the child's testimony to the only allegation she recalled, and ordered her videorecorded statement redacted accordingly.  The judge determined the child's lack of memory rendered her unavailable for cross-examination on the incidents she could not recall, thereby violating defendant's right of confrontation. 

           During jury selection in the now-adjourned trial, the court granted the State's emergent application to file a motion for leave to appeal, granted leave, and now reverses the Law Division order.  The court holds defendant's right of confrontation is not violated by admission of the child's entire videorecorded statement under N.J.R.E. 803(c)(27), previously deemed trustworthy by the trial judge, provided the victim testifies at trial and is subject to cross-examination.  The court therefore concludes the trial judge improperly parsed, and erroneously excluded, those alleged incidents the victim does not recall. 

In Docket No. A-1900-22, the court first granted the State leave to appeal from the propriety of a Law Division judge's pretrial decision that barred the admission of location data from the alleged victim's cell phone and a voice mail purportedly sent from the defendant to his co-defendant.  The motion judge barred the evidence because it was provided by the State after the judge's December 9, 2021 decision that mandated the production of any outstanding discovery by January 6, 2022. 

While that appeal was pending, in Docket No. A-2279-22, the court also granted the State leave to appeal from a February 21, 2023 Law Division order issued by the same judge, denying the State's motion for reconsideration of an October 7, 2022 order.  That order had barred the admission of two text messages allegedly sent by defendant as cumulative to other stipulated N.J.R.E. 404(b) evidence and fraught with impermissible hearsay. 

The court considered the lengthy procedural history in view of the governing legal principles, including its discretionary standard of review.  Unable to conclude on the record provided that the motion judge abused his discretion in either appeal, the court affirmed.

Plaintiff information technology firm brought multiple claims against defendants, its former employee and the law firm that hired him as its in-house technology specialist.  Among other claims, plaintiff alleged the former employee breached his non-compete agreement with plaintiff by taking the job with the law firm, a long-term client of plaintiff.  Plaintiff also alleged the law firm tortiously interfered with the non-compete agreement between plaintiff and its former employee.  After a trial, the Chancery Division enforced the non-compete agreement and found the law firm had tortiously interfered with the agreement between plaintiff and its former employee.

The Chancery Division entered judgment against defendants for damages, including awarding of attorney's fees against the law firm as damages for its tortious interference.  Defendants appealed.

On appeal, the court held the Chancery Division properly awarded attorney's fees as damages for the law firm's tortious interference with contractual relations as an exception to the American Rule, pursuant to DiMisa v. Acquaviva, 198 N.J. 547 (2009).

Defendant appeals an order entered in the Family Part permitting the Division of Child Protection and Permanency to use expunged records obtained from the Monmouth County Prosecutor's Office in a Title 9 litigation concerning the alleged abuse and neglect of his son.  Defendant argues the trial court erred by authorizing the Division to utilize records that were expunged, sealed automatically, and precluded any subsequent use.  We conclude the Division was permitted to use the expunged records pursuant to N.J.S.A. 2C:52-19 because the statute allows the release and use of expunged records upon good cause shown and affirm.

          Registrants filed motions to terminate their Megan's Law registration requirement under N.J.S.A. 2C:7-2(f), arguing the fifteen-year offense-free requirement on juveniles adjudicated delinquent of qualifying Megan's Law offenses did not apply.  The court affirmed the denial of registrants' motions to terminate their Megan's Law obligations because both juveniles were age fifteen or older at the time of their sexual offenses and N.J.S.A. 2C:7-2(f) applies to every person required to register under Megan's Law, including juveniles.

     In this class action matter arising out of a contract dispute, plaintiffs appeal from a July 15, 2022 order granting defendants' motion to stay proceedings against Verizon and to compel arbitration in accordance with the arbitration agreement appearing in the Verizon Customer Agreement.  In an oral opinion of the same date, the trial judge first severed a limitation on damages provision from the agreement before enforcing the arbitration clause.  In reaching its decision, the court did not discuss any provision of the agreement other than the limitation on damages and severability clause.  Nor did the trial judge address why the reasoning of MacClelland v. Cellco P'ship, 609 F. Supp. 3d 1024 (N.D. Cal. 2022), which found the exact same arbitration clause unenforceable as permeated with unconscionability, should not apply with equal force here. 
     Exercising de novo review, the court held that the arbitration agreement is unenforceable in its entirety as it is permeated by provisions which are unconscionable and violative of New Jersey public policy.  The court affirmed the trial judge's determination striking the agreement's limitation on damages, reversed the order staying the proceedings and compelling arbitration, and remanded for proceedings consistent with its decision.
 

     Pursuant to N.J.S.A. 18A:66-36 (Section 36), a member of the Teachers' Pension and Annuity Fund (TPAF) who has "completed [ten] years of service" and has "separated voluntarily or involuntarily from . . . service[] before reaching service retirement age" is eligible to receive deferred retirement benefits, provided the separation was "not by removal for conduct unbecoming a teacher or other just cause."  N.J.S.A. 18A:6-7.1 permanently disqualifies teachers and other school employees who have been convicted of certain crimes from employment in all school systems under the supervision of the Department of Education. 
     Petitioner had accumulated eleven years of service credit when his teaching certificate was revoked by the State Board of Education based on a disqualifying criminal conviction under N.J.S.A. 18A:6-7.1. The conviction was the result of crimes he committed while employed at a mortgage company before he became a teacher and were unrelated to his position as a teacher.  The TPAF Board denied the petitioner's application for deferred retirement benefits, reasoning his separation from membership in the pension plan was based upon a "removal for conduct unbecoming a teacher."  
     The court reversed, relying on In re Hess, where the court held that under the equivalent Public Employees' Retirement System statute forfeiture of deferred pension benefits was "conditioned on an involuntary removal due to misconduct related to employment." 422 N.J. Super. 27, 37 (App. Div. 2011).  And, Masse v. Board of Trustees, Public Employees' Retirement System, where the Court distinguished between removal based on misconduct and forfeiture of pension rights "unrelated to [the employee's] service."  87 N.J. 252, 263 (1981). 

     In 2017, a malware/cyberattack infected Merck's computer and network systems.  Prior to that date, someone had gained access to the computer systems of a Ukrainian company that had developed an accounting software called M.E. Doc used by Merck and other companies in Ukraine.  The malware was delivered into the accounting software.  Ultimately, over 40,000 machines in Merck's network were infected, resulting in "massive disruptions" to Merck's global operations.  The malware spread to at least sixty-four different countries, including Russia.  
     Merck sought coverage for its losses under defendants' "all risks" property insurance policies.  Defendants denied coverage under the "Hostile/Warlike Action" exclusion included in all their policies.  Although defendants conceded the word "warlike" might not be applicable, they asserted the word "hostile" should be read in the broadest possible sense, as meaning "adverse," "showing ill will or a desire to harm," "antagonistic," or "unfriendly."  Defendants contend that any action that "reflects ill will or a desire to harm by the actor" falls within the hostile/warlike action exclusion, as long as the actor was a government or sovereign power.
     The court found the plain language of the exclusion does not support defendants' interpretation.  The exclusion of damages caused by hostile or warlike action by a government or sovereign power in times of war or peace requires the involvement of military action.  The exclusion does not state the policy precluded coverage for damages arising out of a government action motivated by ill will. 
     The court also considered the history of the war exclusion, which has been included in policies for more than a century.  The few applicable cases reaffirm that similar exclusions have never been applied outside the context of a clear war or concerted military action.
     The court concludes the exclusion did not include a cyberattack on a non-military company that provided accounting software for commercial purposes to non-military consumers, regardless of whether the attack was instigated by a private actor or a "government or sovereign power."  Defendants could not assert the exclusion to bar coverage for Merck's losses.