Published Appellate Court Opinions

Pursuant to the Solar Act of 2021, N.J.S.A. 48:3-114 to -120, the Legislature directed the Board of Public Utilities to create a solar facilities program for awarding contracts for grid supply solar facilities and net metered solar facilities greater than five megawatts.  In addition to setting renewable energy goals for the State, the Act directs the development of policy for grid supply solar siting so as not to compromise the State's commitment to preserving and protecting open space and farmland. 

To that end, the Board developed a competitive solar incentive (CSI) program in coordination with the New Jersey Department of Environmental Protection, the Department of Agriculture, and the State Agriculture Development Committee to issue recommendations and a straw proposal on siting requirements.  After a four-year process, which included extensive stakeholder engagement, the Board issued an order that launched the CSI Program. 

N.J.S.A. 48:3-119(c) sets forth seven categories of land where solar facilities shall not be sited unless authorized by a waiver.  N.J.S.A. 48:3-119(c)(7) prohibits siting solar facilities on certain agricultural soils where the grid supply solar facility exceeds the Statewide threshold of 2.5% of such soils unless authorized by the waiver process pursuant to N.J.S.A. 48:3-119(f).  N.J.S.A. 48:3-119(f) describes the waiver process but also states that in no case shall a grid supply solar facility occupy more than 5% of the unpreserved land containing prime agricultural soils and soils of Statewide importance located within any county's designated agricultural development area.

Appellant moved for reconsideration, arguing the Board misinterpreted the siting provisions of the Act codified in N.J.S.A. 48:3-119.  Among other arguments raised by appellant before the Board and on appeal, appellant claimed the Board misinterpreted the Act and ignored the legislative history.  Appellant alleged the 5% per county limit could be exceeded if the 2.5% Statewide limit was not exceeded.  The Board interpreted the siting provisions independently and held the 5% per county limit on development could not be waived. 

The court affirmed the Board's ruling and found the plain language of the Act demonstrated N.J.S.A. 48:3-119(f)'s limit on solar development to 5% of a county's agricultural land was unambiguous.  The 2.5% Statewide limit expressed in N.J.S.A. 483-119(c)(7) served a different purpose and was not a means for a solar developer to exceed the 5% per county restriction.  Moreover, applying the per county limit only after the Statewide limit has been reached could lead to the development of the entirety of a county's agricultural lands.

Given the Act's unambiguous language, the court did not need to resort to the legislative history.  Even so, the legislative history showed the Legislature intended to minimize the potential adverse environmental impacts of solar development and the Legislature never revised the 5% per county limit or stated the per county limit could be waived in either version of the bill before it became law. 

The Board's interpretation of the Act balanced the Legislature's intent to preserve the State's vital natural resources while encouraging the development of clean solar energy.  

The Borough of Englewood Cliffs retained Thomas J. Trautner and Chiesa Shahinian & Giantomasi PC, (collectively CSG), Albert Wunsch III, and Jeffrey Surenian and Jeffrey Surenian and Associates, LLC, (collectively Surenian) to represent it in affordable housing litigation.  After judgment was entered for developer 800 Sylvan Avenue, LLC. (Sylvan), a settlement was reached between the Borough and Sylvan.  Thereafter, political control of the Borough Council majority changed hands and the newly constituted Council sued CSG, Wunsch, and Surenian, alleging professional malpractice, breach of contract, unjust enrichment, civil conspiracy, and aiding and abetting arising from their representation of the Borough in the litigation.  The Borough also sued Sylvan, alleging claims of conspiracy and aiding and abetting. 

The trial court granted defendants' Rule 4:6-2(e) motions to dismiss the Borough's complaint with prejudice.  The trial court subsequently granted defendants' motion for sanctions, ordering the Borough to pay their attorney's fees and costs for filing a frivolous lawsuit.  The Borough appeals, arguing the sanction applications were procedurally deficient; as a public entity, it is immune from paying sanctions under the FLS; and the trial court abused its discretion in finding the Borough's lawsuit was frivolous.[1]

The court rejects the Borough's arguments and affirms based on our interpretation of the FLS that the Borough is not immune from sanctions, defendants' applications for sanctions were procedurally compliant with Rule 1:4-8, and the trial court did not abuse its discretion in imposing sanctions against the Borough.

[1] After their merit briefs were filed, the Borough and Jeffrey Surenian and Jeffrey Surenian and Associates, LLC filed a stipulation of dismissal dismissing all claims and counterclaims, including but not limited to claims for attorney's fees.

         M.R. appealed from a final decision of the Department of Corrections (DOC), denying his application for a certificate of eligibility for compassionate release under the Compassionate Release Act (CRA), N.J.S.A. 30:4-123.51e.  The DOC denied his application because two licensed physicians designated by the commissioner of the DOC had rendered medical diagnoses in which they found M.R. had neither a terminal condition nor a permanent physical incapacity as defined by the CRA.   

         M.R. argued on appeal the CRA and related regulations required the designated physicians to examine him physically and the DOC's decision was arbitrary, capricious, and unreasonable because the physicians had not physically examined him and had failed to make certain findings required under the CRA.  The court disagreed, concluding that, while a physician may request a physical examination, the CRA and related regulations did not require one.  The court also concluded the physicians had made the requisite findings.  Accordingly, the court affirmed the DOC's decision. 

On leave granted, in this medical negligence matter, we consider whether N.J.S.A. 2A:53A-41(a) under the New Jersey Medical Care Access and Responsibility and Patients First Act (Act), N.J.S.A. 2A:53A-37 to -42, requires plaintiffs to serve an affidavit of merit (AOM) from a physician board certified in both specialties if defendant physician is board certified in two specialties, and the treatment claimed to be negligent involves both specialties.

Plaintiffs rely on Buck v. Henry, 207 N.J. 377 (2011), in asserting they need only provide an AOM from a physician who specializes in either of the defendant doctor's specialties.  The trial court agreed and denied defendants' motions to dismiss for failure to provide the proper AOM and for reconsideration.

Defendant physician is board certified in internal medicine and gastroenterology.  He certified that his care and treatment of plaintiffs' decedent involved both specialties.  Plaintiffs only served an AOM from a physician board certified in internal medicine.

In considering defendants' dismissal motions, the trial court cited to two sentences from Buck:  "A physician may practice in more than one specialty, and the treatment involved may fall within that physician's multiple specialty areas.  In that case, an [AOM] from a physician specializing in either area will suffice."  Id. at 391.

Because the facts presented here are distinguishable from Buck and the discrete ruling in Buck was not specific to this issue, and in considering the legislative purpose of the Act, and the principles of law espoused in the subsequent cases of Nicholas v. Mynster, 213 N.J. 463, 480-88 (2013), and Pfannenstein ex. rel. Estate of Pfannenstein v. Surrey, 475 N.J. Super. 83, 90-91 (App. Div.), certif. denied, 254 N.J. 517 (2023), we conclude plaintiffs must serve an AOM from a physician board certified in each of defendant doctor's specialties.  We are also guided by the kind-for-kind, credential equivalency requirement articulated in N.J.S.A. 2A:53A-41(a).  Therefore, we reverse the court's orders denying defendants' motions to dismiss for a deficient AOM and for reconsideration.

However, because plaintiffs raised the issue of a waiver from the AOM requirement, and the issue was fully briefed and discussed during oral argument before the trial court, we remand for the court to determine the waiver argument on its merits.

This appeal addresses whether the trial court erred by admitting into evidence a statement defendant had made to police and barring in part the testimony of defendant's expert witness. 

Several months after the drug-induced death of the victim, a police detective interviewed defendant, eliciting from her information about her cell-phone usage before he advised her of her Miranda rights and information regarding her drug-selling activity and contact with the victim after he advised her of her rights.  The detective told defendant he was "not holding anything back" and was "laying it all out . . . on the table" but never mentioned the death of the victim and repeatedly used the present tense when discussing her.   Defendant confessed to selling heroin to the victim.  The parties did not raise before the trial court the admissibility of defendant's statement, and the statement was admitted into evidence. The trial court granted the State's pretrial motion to bar defendant's expert witness from testifying about drug use and addiction, finding him qualified only in toxicology and not in those fields.  A jury convicted defendant of committing a first-degree drug-induced death crime, in violation of N.J.S.A. 2C:35-9(a), along with other drug-related crimes. 

The court finds the trial court (1) committed plain error by admitting defendant's statement without first conducting a Rule 104 hearing to determine under a totality-of-the-circumstances test the voluntariness of defendant's statement and Miranda waiver; (2) erred in admitting the pre-Miranda questions and answers but that that error did not rise to the level of plain error because other evidence was admitted regarding defendant's cell-phone usage; and (3) abused its discretion by limiting defendant's expert testimony without conducting a Rule 104 hearing regarding the expert witness's qualifications and opinions.  The court remands the case and instructs the trial court to conduct evidentiary hearings regarding the voluntariness of defendant's statement, the qualifications of defendant's expert witness, and the admissibility of his opinions.   Whether defendant's convictions are affirmed or vacated for a new trial depends on the outcomes of those hearings.

     At issue in this interlocutory appeal is the propriety of a pretrial order compelling the administration of psychotropic medication in an attempt to restore competency, without a defendant's consent, when the accused has not been deemed a danger to self or others.  With defendant's constitutional rights in view, the court applies the four-pronged test enunciated by the United States Supreme Court in Sell v. United States, 539 U.S. 166 (2003), and concludes the motion judge erroneously determined the State satisfied the second Sell prong.  The court therefore reverses the order under review. 

     In doing so, the court departs from the majority of federal appellate courts and holds the standard of review under the Sell test is mixed; the court therefore reviews the motion court's legal conclusions de novo and its factual findings for clear error as to each Sell prong.  Having resolved the issues by applying the Sell standard, the court does not reach the constitutional arguments urged by defendant and amici curiae.

In this automobile insurance coverage dispute, the court considered defendant Wausau Underwriters Insurance Company's appeal from Law Division orders granting summary judgment to plaintiff Britney Motil, entitling her to $100,000 in underinsured motorist (UIM) insurance coverage, and denying reconsideration.  

This appeal presented the novel issue of whether plaintiff was entitled to UIM coverage as a "covered driver" injured in an automobile accident while driving a "covered auto" with an identified alternate garaging address under her parents' automobile policy.  Defendant disclaimed coverage, under the policy's uninsured motorist (UM)/UIM endorsement step-down provision, because plaintiff was neither a named insured nor a defined family member.  After a de novo review, the court concluded there was ambiguity between the declaration and the policy's step-down provision of $15,000 in UIM coverage because the declaration plainly provided:  $100,000 UM/UIM coverage for each person; plaintiff was a covered driver; the UM/UIM premium charged was the same for each vehicle; and plaintiff's vehicle was a covered vehicle with an alternate garaging address.  Further, the court concluded the policyholder's reasonable expectation of $100,000 UIM coverage should be afforded.  

The court affirmed the Law Division's orders finding plaintiff was entitled to $100,000 in UIM insurance coverage and denying reconsideration.

         In these cases that were consolidated for the purpose of issuing a single opinion, defendants appeal from their convictions following municipal court appeals because the Law Division decided their appeals without conducting hearings or permitting briefing.

         In both cases, the Law Division determined briefing was not required and, because defendants did not request argument, decided the appeals based solely on its review of the municipal court transcripts and the police body camera video introduced as evidence in the municipal court trials.  The court found it "is incumbent on counsel to . . . tell the court why briefing is necessary and to request argument if they want it."  On appeal, defendants argued the court deprived them of their rights to due process and counsel.

         The court reversed, concluding Rules 3:23-4 and -8 require that the Law Division schedule and conduct a hearing on a municipal appeal.  There is no requirement that a defendant request a hearing.  The court also noted, although the proceeding is technically designated an appeal, the Law Division must conduct a trial de novo on a municipal appeal.  At the trial de novo, the Law Division must make its own findings of fact and conclusions of law and, if the court finds the State proved its case beyond a reasonable doubt, sentence the defendant anew.

          The court also concluded, based on the arguments raised by defendants, it would be appropriate to permit, if not require, the parties to file briefs in these cases.  Finally, to avoid any appearance of bias or prejudice, the court required the appeals be assigned to a different judge on remand.

This appeal concerns issues of preclusion and the relationship between the statutory systems for the Commissioner of Education and the State Board of Examiners revoking or suspending an educator's certificate to teach in the New Jersey public schools under N.J.S.A. 18A:6-17.1, and the separate arbitration process specified since 2012 in N.J.S.A. 18A:6-38 to -39 2 (the TEACHNJ law) for a school district terminating or disciplining a teacher for improper conduct.

Appellant, a tenured teacher, was charged by the local board of education with unbecoming conduct.  The school board sought to terminate his employment in the district.  The contested matter was tried before an arbitrator.  The arbitrator found appellant had engaged in unbecoming conduct, but she imposed a milder sanction of a one-year suspension.  The arbitrator's decision was not challenged in court by either appellant or the school board.  The Board of Examiners then pursued the revocation of appellant's license based on his same improper conduct, and it is anticipated that contested case will be tried in the Office of Administrative Law.

Appellant contends the Board of Examiners and the Commissioner—even though they were not parties to the tenure arbitration—have no authority to pursue the revocation of his license because the arbitrator only suspended his employment for one year.  Among other things, appellant invokes a doctrine of "industrial double jeopardy" to support his preclusion argument.  He also contends the revocation proceedings violate his constitutional and civil rights.

The matter was presented to a Law Division judge, who confirmed the arbitration award but rejected appellant's arguments for preclusion.

This court affirms the trial court's decision and holds the Board of Examiners and the Commissioner are not precluded by the arbitration outcome from pursuing the revocation of appellant's teaching certificate.  The statewide teacher certificate revocation process authorized in N.J.S.A. 18A:6-38 and -39 operates separately from the teacher tenure arbitration process under N.J.S.A. 18A:6-17.1.  The manifest legislative intent is for the two statutes to be administered independently of one another.  The proceedings involve non-identical parties, and also different stakes, procedures, and avenues and standards of appellate review. 

The court rejects appellant's assertion of industrial double jeopardy and his claims of the violation of his constitutional and civil rights.

Plaintiff, who was fired from her job as a physician, appeals from an order of the Superior Court, Law Division staying her complaint against defendants pending arbitration.  Plaintiff's claims included allegations of sexual assault, intentional infliction of emotional distress, and a statutory retaliation claim under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50.

Defendants moved to compel arbitration pursuant to plaintiff's employment contract.  The trial court granted the motion, finding the contract's arbitration clause was valid and enforceable.

The court engaged in a de novo review of the employment contract using well-settled contract principles, and it held the mandatory arbitration clause was ambiguous and therefore unenforceable against plaintiff.  Holding the arbitration clause unenforceable, the court declined to reach the question of whether the Federal Arbitration Act applies.

In a separate opinion concurring with the result, a member of the panel would reverse for a different reason, discerning no ambiguity in the arbitration provision and concluding, unlike the contract at issue in Antonucci v. Curvature Newco, Inc., 470 N.J. Super. 553 (2022), the present contract is not governed by the FAA.  Accordingly, plaintiff's LAD claims would not be arbitrable pursuant to N.J.S.A. 10:5-12.7.

In this matter, the court considers the novel issue of the circumstances under which a municipality may decline to adopt a Resolution of Support (ROS) for an applicant seeking to obtain a Class 5 Cannabis Retailer License (CRL) from the State of New Jersey Cannabis Regulatory Commission (the Commission) under N.J.S.A. 24:6I-31 to -56, the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA).

Plaintiff filed an order to show cause (OTSC) and a verified complaint against the Township of West Milford, the Council of West Milford Township (collectively referred to as the Township), and SoulFlora, Inc. after the Township effectively denied plaintiff's request for a ROS for its CRL application by not placing it on a public meeting agenda for consideration by the governing body.  The Township asserts its de facto denial was predicated on a Township ordinance prohibiting businesses with CRLs to be located less than 2,500 feet from each other.  The proposed location of plaintiff's cannabis business was less than 500 feet from SoulFlora's. 

Plaintiff sought injunctive relief to prevent SoulFlora from establishing a cannabis business; enjoining the Township from issuing a ROS to any other new cannabis business applicants; revoking SoulFlora's ROS; and requesting attorneys' fees and costs.  The court affirms denial of plaintiff's OTSC under Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982).  The court holds plaintiff did not have a likelihood of success on the merits, finding the Township's effective denial of plaintiff's request for a ROS was not arbitrary, capricious, or unreasonable since under CREAMMA, municipalities are delegated the authority to promulgate location and density requirements for cannabis retail businesses and are statutorily vested with the right to decline to provide local support for applicants who fail to meet those requirements. 

The court reverses the with-prejudice dismissal of the claims against the Township and remands to the trial court to issue a statement of reasons pursuant to Rule 1:7‑4(a), along with an accompanying order.   The court affirms the dismissal of the complaint against SoulFlora with prejudice, while finding that it is an indispensable party for notice purposes only. 

          In this matter, the court considers whether the trial court properly dismissed plaintiff's complaint with prejudice after finding it was barred by the entire controversy doctrine and res judicata.  Plaintiff's putative class action complaint, filed in Essex County, sought to claw back funds she paid in full satisfaction of a final default judgment, entered in a prior lawsuit adjudicated in Bergen County.  The court holds that the entire controversy doctrine precludes plaintiff from relitigating a final default judgment through the filing of a new complaint in a different court when she failed to pursue any of her substantive arguments in the previous litigation. 

          Plaintiff defaulted on paying an outstanding credit card balance, so the bank closed out her account and assigned her outstanding debt to defendants.  Through a complaint filed in Bergen County, defendants obtained a final default judgment against plaintiff, which she did not move to vacate or otherwise appeal.  Plaintiff fully satisfied the judgment through wage garnishments.

          Plaintiff filed a putative class action complaint in Essex County against defendants seeking a declaratory judgment voiding the debt and any judgments enforcing that debt, as well as treble damages and disgorgement of amounts previously paid to defendants, based on the assertion that defendant was not licensed, as required by the New Jersey Consumer Finance Licensing Act (CFLA), N.J.S.A. 17:11C-1 to -49. 

          Since the entire controversy doctrine precludes plaintiff from pursuing the Essex County litigation predicated on substantive defenses that could have been raised in the prior Bergen County litigation, there was no amendment to the pleading that could have rendered plaintiff's complaint viable.  Thus, dismissal of the complaint with prejudice based on the entire controversy doctrine was appropriate.  The court affirms the Essex County order.

          Following the 2020 decennial United States Census, the City of Jersey City Ward Commission (the Commission) redrew the six election wards for the City of Jersey City (the City).  In these two consolidated appeals, plaintiffs challenge the ward boundaries and map adopted by the Commission.  Plaintiffs contend that the new ward map violates the Municipal Ward Law (the MW Law), N.J.S.A. 40:44-9 to -18, the New Jersey Civil Rights Act (the CR Act), N.J.S.A. 10:6-1 to -2, and their rights of free speech, free association, and equal protection under the New Jersey Constitution.  They also argue that the Commission did not comply with the Open Public Meetings Act (the OPMA), N.J.S.A. 10:4-6 to -21.

The court affirms in part and reverses in part the dismissal of plaintiffs' complaints in lieu of prerogative writs.  The court affirms the dismissal of the claims asserting violations of plaintiffs' constitutional rights, the CR Act, and the OPMA.  The court reverses the dismissal of the claims of violations of the MW Law.  Resolution of those statutory claims requires some, albeit limited, fact-finding.  Therefore, the court remands the MW Law claims for a focused and limited proceeding on whether the Commission had a rational basis for the ward boundaries and map it adopted.

In this matter, the court considers whether the trial court properly denied defendant's motion to suppress evidence seized after a search of the vehicle defendant was operating following a traffic stop.  When the officer approached defendant's vehicle, he noticed a burnt smell of marijuana emanating from it.  The officer did not intend to search the vehicle at that point.  However, after the dispatcher informed the officer defendant had an outstanding warrant necessitating defendant's arrest, and the officer smelled a perceptible odor of raw marijuana on defendant's person as they sat together in the patrol car, the officer decided to search the vehicle.

The court concludes that the officer's testimony regarding the odors established probable cause for the subsequent search of the vehicle.  In addition, the finding of probable cause arose in unforeseeable and spontaneous circumstances.  There were not two stops as argued by defendant.  The discovery of the warrant and new smell emanating from defendant's person permitted the officer to continue the investigation.  The search was permissible under the automobile exception to the warrant requirement as articulated in State v. Witt, 223 N.J. 409 (2015).  The court affirms the order denying defendant's suppression motion.

          Along with another offense, a grand jury indicted defendant on first-degree unlawful possession of a weapon under N.J.S.A. 2C:39-5(b)(1) and N.J.S.A. 2C:39-5(j).  Pursuant to a plea agreement, defendant pled guilty to first-degree unlawful possession of a weapon.  At sentencing, defendant argued N.J.S.A. 2C:39-5(j) was not subject to the Graves Act, N.J.S.A. 2C:43-6(c), which requires a mandatory period of parole ineligibility because N.J.S.A. 2C:43-6(c) did not enumerate N.J.S.A. 2C:39-5(j).  The sentencing judge disagreed and held N.J.S.A. 2C:39-5(j) is a grading statute, and sentenced defendant to a ten-year sentence with a five-year period of parole ineligibility, pursuant to the Graves Act.

          Defendant's appeal was initially heard on the court's sentencing oral argument calendar.  It was then transferred to the plenary calendar given the question of law raised, and to resolve differing interpretations of the Graves Act and N.J.S.A. 2C:39-5(j) in unpublished opinions, and reported uneven practices in the trial courts.  The central question on appeal was whether N.J.S.A. 2C:39-5(j) is a substantive offense not subject to the Graves Act or whether N.J.S.A. 2C:39-5(j) acts as a grading statute, thereby enhancing the penalty, which is subject to the Graves Act.

          The court concluded N.J.S.A. 2C:39-5(j) is not a separate offense but instead a grading statute that is subject to the Graves Act penalty.  Reading the statute to the contrary would lead to an absurd result because a person convicted of a first-degree unlawful weapons offense could serve less time than a person convicted of a lesser-degree offense by virtue of parole eligibility.  The court concluded the more sensible reading of N.J.S.A. 2C:39-5(j) was as a grading statute and therefore affirmed defendant's sentence.

Plaintiffs first sued two pharmaceutical companies in federal court in Texas asserting claims under the federal False Claims Act and the New Jersey False Claims Act (NJFC Act), N.J.S.A. 2A:32C-1 to -18.  After the claims under the NJFC Act were dismissed without prejudice, plaintiffs sued the same pharmaceutical companies in New Jersey re-asserting the NJFC Act claims.   Because the allegations in plaintiffs' complaints had previously been publicly disclosed and because plaintiffs were not the original source of that information, the court holds that plaintiffs' complaints were properly dismissed under the public disclosure bar of the NJFC Act.  See N.J.S.A. 2A:32C-9(c).

This appeal requires us to determine whether defendant Boys and Girls Clubs of America (BGCA), an out-of-state non-profit national youth organization, is subject to the specific personal jurisdiction of our state courts in a lawsuit pertaining to the alleged sexual abuse of plaintiffs by a counselor employed by defendant Boys and Girls Club of Hudson County (Hudson County BGC), a New Jersey non-profit youth member organization affiliated with BGCA. 

The motion judge found specific personal jurisdiction over BGCA regarding plaintiffs' sexual abuse claims.  The court disagrees and reverses. 

Jurisdictional discovery revealed BGCA had no influence or control over Hudson County BGC's hiring, training, or supervision of the counselor.  Consequently, our state courts have no specific personal jurisdiction over BGCA in this matter because BGCA did not purposefully avail itself of benefits in or from New Jersey.

In State v. Witt, our Supreme Court held police cannot conduct a search pursuant to the automobile exception to the warrant requirement once a vehicle has been towed away and impounded.  223 N.J. 409, 448-49 (2015).  John's Law generally requires police to impound a vehicle for at least twelve hours when the driver is arrested for driving while intoxicated (DWI).  This case addresses the novel question of whether police may conduct a search under the automobile exception when they are required to impound a vehicle pursuant to John's Law, but the vehicle has yet to be removed from the scene of the stop.

The trial judge suppressed a handgun found under the front passenger seat, reasoning that because the officers were required to impound the vehicle, they were also required to obtain a search warrant even though the search occurred roadside.  After considering the plain text and rationale of Witt, the court reverses the suppression order, holding the inherent exigency justifying a warrantless search at the scene continues to exist so long as the detained vehicle remains at the location of the stop.  The court reasons the inherent exigency is not abated by the fact the vehicle will eventually be removed from the scene.  Nor is such exigency abated when the decision is made to remove the vehicle, regardless of whether the decision is made in the exercise of police discretion or in compliance with a statutory impoundment mandate.  The court concludes the authority to conduct an automobile-exception search lapses only after the vehicle has been removed to a secure location, not in anticipation of such removal.  So long as police satisfy the foundational requirements of probable cause, spontaneity, and unforeseeability, a contemporaneous on-the-spot search is permitted regardless of the ultimate disposition of the vehicle.  Accordingly, the court declines to create a new bright-line rule making vehicles subject to John's Law categorically ineligible for an on-scene search under the automobile exception.

In this appeal the court addresses whether an entire county prosecutor's office must be recused from a criminal prosecution when the county prosecutor has a personal, disqualifying conflict.  The court holds that so long as the prosecutor has been completely screened from and has no oversight of the matter, the prosecutor's office should not be disqualified.  Accordingly, the court affirms the trial court's order denying defendant's motion to disqualify the entire Monmouth County Prosecutor's Office from continuing to prosecute defendant and multiple co-defendants in this criminal matter.

In this case the court is asked to answer three questions:  first, whether a governmental body, serving as a Redevelopment Agency, is obligated to apply electric vehicle ("EV") parking credits, as required under N.J.S.A. 40:55D-66.20 ("the EV statute"), when determining a concept plan's consistency with a redevelopment plan adopted pursuant to the Local Redevelopment and Housing Law ("LRHL") (N.J.S.A. 40A:12A-1 to -89); second, under section (f) of the EV statute, when applying EV credits, how the credits are to be rounded up; and last, whether a rounded-up EV credit may reduce the total required parking by more than the ten percent limit set forth under section (e) of the EV statute.

The court held that EV credits are to be applied when determining a concept plan's consistency with a redevelopment plan.  Otherwise, a plan that was confirmed as consistent by the Borough would not be the same as the one to be potentially approved at time of preliminary site plan approval.  The court also concluded that when applying EV credits to the total number of calculated spaces and that number includes any decimal, based on the plain language of the statute, the calculation must be rounded up to the next whole parking spot.  However, also based on the plain language of the statute, the court rejected the contention that a rounded-up EV credit can reduce the total required parking by more than the ten percent limit set forth under section (e) of the EV statute, which is more specific than section (f) and therefore controls.

Applying these principles, the court affirmed the Law Division's denial of plaintiff's motion for summary judgment and grant of defendant's cross-motion for summary judgment.

Plaintiff, a tenured professor, was fired after a university received a series of student complaints.  The university issued charges against plaintiff and conducted dismissal proceedings pursuant to its faculty handbook, a document which, among other things, detailed the process for removing a tenured professor.  The university's board of trustees found by clear and convincing evidence that plaintiff had engaged in willful misconduct and terminated his employment.

Plaintiff filed suit, alleging the board failed to establish adequate cause for termination by clear and convincing evidence.  The trial court granted the board's motion for summary judgment, finding the board was not arbitrary, capricious, or unreasonable in its decision to terminate plaintiff in accordance with the agreed-upon guidelines established in the faculty handbook.

After a de novo review of the trial court's summary judgment order, the court affirmed, holding that the administrative agency standard of review used to analyze the internal decision-making of public universities applied to a private university's termination of a tenured professor.

In this medical malpractice action, the court granted defendant Perry Loesberg, M.D. leave to appeal Law Division's order's denying his motions to dismiss plaintiff's amended complaint due to their failure to serve an affidavit of merit (AOM) within 120 days of the filing of defendant's answer in accordance with N.J.S.A. 2A:53A-27.  The court affirms, concluding the orders were supported by the record because there were extraordinary circumstances warranting an extension of the AOM 120-day filing deadline. 

Prior to defendant being named in the amended complaint, a court order granted plaintiff's motion to waive the filing of an AOM as to the then-named defendants.  The lack of a Ferreira conference after defendant answered the amended complaint, coupled with the prior court order and defendant's discovery response failure to raise the lack of an AOM as a defense, constituted "an almost perfect storm" of events that warrant affording plaintiff additional time to submit an AOM.  See A.T. v. Cohen, 231 N.J. 337, 350 (2017).  A Ferreira conference should have been conducted to bring the parties together to address the applicability of the AOM waiver order on the claims against the newly-added defendant.  Permitting plaintiff to file an AOM outside the 120-day statutory deadline and denying defendant's motions to dismiss prevents an injustice.

In this appeal, as an issue of first impression, the court was asked to consider whether N.J.S.A. 43:21-19(i)(10)— from the time of its enactment in 2010—provided an exemption for court reporters under the Unemployment Compensation Law ("UCL"), N.J.S.A. 43:21-1 to -71, or whether court reporters must still establish a Federal Unemployment Tax Act ("FUTA") exemption pursuant N.J.S.A. 43:21-19(i)(1)(G).  The court determined N.J.S.A. 43:21-19(i)(10) does provide such an exemption and there is no requirement for court reporters to establish a FUTA exemption.

The court noted the express language of N.J.S.A. 43:21-19(i)(10) provides that services performed by court reporters "shall not be deemed to be employment subject" to the UCL.  The court presumed the Legislature understood the implications of removing court reporters from N.J.S.A. 43:21-19(i)(7)(Y) and the corresponding FUTA mandate and placing the amendment in a different section.  The DOL asserted there were no scenarios in which the new statute, N.J.S.A. 43:21-19(i)(10), would apply to court reporters in a manner distinct from the operation of the prior exemption under N.J.S.A. 43:21-19(i)(7)(Y).  The court rejected that interpretation, which would have rendered N.J.S.A. 43:21-19(i)(10) meaningless because the amended statute must be read in harmony with N.J.S.A. 43:21-19(i)(7)(Y) and the rest of the statute.  The court further determined the Legislature was fully aware of the prior requirement for court reporters to establish a FUTA exemption under N.J.S.A. 43:21-19(i)(7)(Y), which is why it amended the statute to remove the requirement for a FUTA exemption under N.J.S.A. 43:21-19(i)(10).

The court noted that although a sensible reading of N.J.S.A. 43:21-19(i)(10) provides an exemption for court reporters, to the extent the statutory language resulted in more than one reasonable interpretation, the legislative history unequivocally established the Legislature intended to dispense with the requirement to establish a FUTA exemption.  Accordingly, the court reversed the Commissioner's holding with respect to the applicability of N.J.S.A. 43:21-19(i)(10) and concluded petitioners are exempt from the time of the enactment of the statute in 2010.

         The court granted defendant leave to appeal from two orders entered by the Family Part, which denied a motion to amend his answer to include a counterclaim for divorce and his subsequent motion for reconsideration.  On appeal, the court reversed both orders.

          The court concluded defendant should have been permitted to amend to include a counterclaim because discovery was not concluded, there was no trial date, and the interest of justice required it.  The proposed counterclaim alleged defendant learned of conduct between plaintiff and a third party, which constituted grounds for divorce based on irreconcilable differences and extreme cruelty.  Moreover, based on defendant's proposed pleading and extant business litigation in the Law Division involving the parties and the third party, the case appeared to be complex in that defendant's counterclaim sounded in claims against plaintiff for:  dissipation, marital fault, and bad faith.

         Plaintiff argued to the trial court and on appeal that Rule 5:4-2(e) barred defendant's ability to amend the answer to include incidents that occurred during the marriage because defendant knew about the claims and failed to file a counterclaim with his initial answer.  The court concluded Rule 5:4-2(e) was inapplicable because it applies when a party seeks to amend an already existing counterclaim.  Moreover, the court harmonized Rule 5:4-2(d) and (e) with Rule 4:9-1 and held the amendment of Family Part pleadings are subject to the liberal interest of justice standard in Rule 4:9-1, and courts should permit a party to amend where the request is timely, and not futile, frivolous, or harassing. 

In this appeal, the court held that the rule announced in State v. Smith, 251 N.J. 244, 253 (2022), that "reasonable and articulable suspicion of a tinted windows violation arises only when a vehicle's front windshield or front side windows are so darkly tinted that police cannot clearly see people or articles within the car," should be afforded pipeline retroactivity.  The court also determined a defendant who had not filed a notice of appeal when a retroactive decision was issued, but was subsequently granted leave to file as within time under Rule 2:4-4 and State v. Molina, 187 N.J. 531, 535-36 (2006), is deemed within the "pipeline" for retroactivity purposes.

In this appeal, the court considered whether a Remediation in Progress waiver (RIP waiver) issued by the New Jersey Department of Environmental Protection (NJDEP) conveys a property interest to the recipient that is constitutionally protected by the right to due process.  The court concluded it does not.

The owner or operator of an industrial establishment is subject to the Industrial Site Recovery Act (ISRA) when they cease operations or transfer ownership or operation of the industrial establishment.  N.J.S.A. 13:1K-9(a).  Before doing so, the ISRA requires the owner or operator of an industrial establishment to remediate its industrial establishment and obtain a final remediation document.  N.J.S.A. 13:1K-9(b).  To expedite transfers and cessations of contaminated industrial sites, the ISRA permits alternatives to obtaining a final remediation document prior to the cessation of operations or transfer of property, including an RIP waiver.  N.J.A.C. 7:26B‑5.4.  An RIP waiver allows the owner or operator of an industrial establishment to apply to NJDEP to close or transfer ownership or operations, provided that the industrial establishment is already in the process of remediation and specific requirements are met.  N.J.S.A. 13:1K‑11.5; N.J.A.C. 7:26B-5.4.

An RIP waiver is contingent on remediation being in progress; if remediation falls out of compliance, the RIP waiver applicant no longer qualifies for the suspension under N.J.S.A. 13:1K-11.5, and NJDEP may rescind the RIP waiver.

Clarios, LLC, appealed from a decision by NJDEP to deny its request for an adjudicatory hearing concerning NJDEP's decision to rescind Clarios's RIP waiver for the premises at issue, 760 Jersey Avenue, New Brunswick.  Clarios argued NJDEP's grant of the RIP waiver in 2007 created a property interest protected by a right to due process in that the RIP waiver operates like a license—well-recognized to be in the nature of a property right—that permits the receiving party to conduct certain activities and exempts it from obligations subject to the State's stipulations.

The court rejected Clarios's assertion.  The only benefit conferred by the RIP waiver is that the owner or operator may effect such close of operations or transfer of ownership prior to "obtaining departmental approval of a remedial action workplan or a negative declaration or without the approval of a remediation agreement."  N.J.S.A. 13:1K‑11.5(a).  The RIP waiver does not suspend the need to remediate the industrial establishment.  It waives only the requirement to provide for remediation before the close of operations or the transfer of ownership.  In addition, the regulation that provides for the issuance of RIP waivers explicitly limits the authority of the waiver to relieve the recipient of "the obligations to remediate the industrial establishment pursuant to ISRA . . . and any other applicable law."  N.J.A.C. 7:26B-1.8(b).

          In this appeal, as an issue of first impression, the court addresses whether a New Jersey court may consider a motion to terminate the registration requirements of an individual subject to Megan's Law[1] in New Jersey but residing in another state.  The court holds that although a New Jersey court may have jurisdiction to decide the motion, it must decide on a case-by-case basis whether the registrant has standing to bring the motion. 

          J.R. committed a sex offense in 1993 that subjected him to Megan's Law in New Jersey.  Upon moving to Montana in 2021, J.R. was subject to registration there because Montana statute requires registration for individuals who committed a sexual offense in another state for which they were required to register.  He then filed a motion to terminate his registration obligation in New Jersey pursuant to N.J.S.A. 2C:7-2(f).

          The court agrees with the Megan's Law judge that J.R. no longer had a registration obligation in New Jersey and his obligation in Montana was dependent on his prior conviction in New Jersey, which would remain regardless of the outcome of the motion.  The court rejects J.R.'s contention that he continued to have a Megan's Law "status" in New Jersey.  He neither faced harm from the denial of the motion nor could he benefit from the granting of the motion because it would not alter his registration obligation in Montana.  Because he was not suffering a harm that a New Jersey court could address, J.R. lacked standing to have a New Jersey court decide his motion, and we affirm the Megan's Law judge's decision.

          Because registration requirements vary across the country, there may be instances where a registrant's obligation to register in another jurisdiction would be impacted by the outcome of a motion to terminate in New Jersey.  Therefore, a court must examine the legislative scheme in the jurisdiction where the registrant resides to determine whether the motion presents a justiciable controversy that amounts to standing.

[1]  N.J.S.A. 2C:7-1 to -23.

In this matter, arising out of a failure to accommodate and discrimination action under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50, a jury returned a verdict for plaintiff awarding her compensatory damages and $10 million in punitive damages.  On appeal, the court affirmed the finding of liability and the compensatory damage award but remanded for further proceedings on the amount of punitive damages, and specifically, for substantial consideration of the factors discussed by our Supreme Court in Baker v. National State Bank, 161 N.J. 220 (1999), and the United States Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). 

The Supreme Court granted defendant's petition for certification and modified this court's remand instructions.  The Court held that when reviewing a punitive damages award against a public entity, a trial court must not only consider the Baker/BMW factors, but also needs to apply heightened scrutiny as required under Lockley v. State, Department of Corrections, 177 N.J. 413 (2003).

On remand, the trial court concluded the punitive damages award was "reasonable" and "comport[ed] with due process."

In the present appeal, the court established a hybrid standard of review when considering an award of punitive damages against a public entity.  The court should accord a deferential standard of review to a judge's determination of whether the jury's punitive damages award is "reasonable" and "justified in the circumstances of the case" under N.J.S.A. 2A:15-5.14(a).  However, when a party challenges the punitive damages award on constitutional due process grounds, the court should review the trial court's decision as to the amount of the punitive damage award de novo. 

After considering the Baker/BMW factors using the heightened scrutiny required under Lockley, we concluded the punitive damages award was not unreasonable or disproportionate to the harm caused by defendant's upper management representatives in their disregard of the LAD.  Although mindful the source of the damages award is public funds, the court concluded the award was necessary to deter future unlawful conduct and to encourage high-level officials to conform their behavior.

        In this appeal, the court considers whether the Governor can be compelled by mandamus to act on an appointment power when the statute at issue neither expressly requires, nor provides a deadline for, the exercise of that discretionary function.  Seventeen municipalities challenge the Governor Murphy's inaction, demanding he fill long-standing vacancies on the Council on Affordable Housing (COAH).  The court rejects appellants' contentions that the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329, requires the chief of the executive branch to fill those appointments and that Governor Murphy's inaction violates that obligation and undermines the public policy reflected in the FHA. 

      Persuaded by the Governor's responding argument, this court held it cannot compel the Chief Executive to make appointments to COAH because mandamus – the relief appellants seek – cannot be applied against the Governor, generally.  Further, even if mandamus were applicable to the Governor, the remedy is unavailable here because appellants seek to compel an exercise of discretion.   The court thus held the Governor cannot be compelled by mandamus to fill COAH's vacancies.  Accordingly, the court dismissed the appeal.

         Following a long-term marriage, plaintiff filed a complaint for divorce and the parties, represented by counsel, entered a comprehensive marital settlement agreement (MSA).  Plaintiff sought an uncontested divorce "on the papers" and filed the certification required by the Administrative Office of the Courts for such a proceeding.  However, defendant sought an uncontested divorce hearing by way of Zoom, which the court in turn scheduled.  Plaintiff died before the uncontested hearing.

         His estate, represented by the parties' eldest son, sought to be named the real party in interest and to enforce the MSA, among other relief.  Defendant cross-moved to dismiss the complaint because of plaintiff's death.  The trial judge denied the motion and dismissed the complaint.  It ruled that under Carr v. Carr, 120 N.J. 336 (1990), plaintiff's death abated the divorce and there were no unusual or exceptional circumstances warranting invocation of an equitable remedy, such as a constructive trust, to prevent an unjust enrichment by defendant. 

         The court reversed and remanded for entry of an order permitting the estate to be substituted as the real party in interest and incorporating the MSA into a final judgment.  Although defendant did not engage in conduct warranting the imposition of a constructive trust, the trial court overlooked the fact the parties had a fully signed MSA that was fair and equitable, whose validity defendant did not challenge, and that but for the delay in scheduling the uncontested hearing, both parties intended to proceed with the uncontested divorce.  Therefore, the equities and our public policy of encouraging and enforcing settlements in matrimonial matters did not warrant discarding the MSA and dismissing the matter. 

          While the appeal was pending, the Legislature amended the intestacy and equitable distribution statutes.  The amendments to the equitable distribution statute authorize Family Part judges to effectuate equitable distribution where a party dies during a divorce proceeding and the complaint has not been previously dismissed pursuant to Rule 4:6-2.  The Legislation is effective January 8, 2024. 

        The court reviewed the plain language of the new statutes and the legislative statement accompanying their passage, and concluded the Legislature intended to afford pipeline retroactivity to pending cases.  Therefore, the new statutes applied to this case and provided independent grounds to uphold and enforce the parties' MSA.

This interlocutory appeal concerns whether the New Jersey courts have personal jurisdiction over a defendant Utah company and its sole owner who entered into a contract to reserve a booth for plaintiff, a New Jersey company, at a biannual trade show in Germany planned for 2020.  The 2020 trade show was eventually cancelled because of the COVID-19 pandemic, and the company and its owner declined to refund plaintiff's payment or apply it to the next show in 2022.

Defendants argue they lacked the required "minimum contacts" to be sued in New Jersey, stressing that plaintiff originally initiated the parties' relationship in 2011 by asking defendants to arrange for space at an earlier trade show in 2012.  They further contend it would offend constitutional principles of fair play and substantial justice to compel them to litigate this civil case in this distant state.

The court affirms the motion judge's finding of personal jurisdiction.  Although cases that have found specific jurisdiction often have involved a defendant that first initiated contact with a plaintiff in the forum state, the court holds it is not dispositive that the New Jersey plaintiff originally initiated contact with the Utah company and its owner years before the present transaction.  The record shows the Utah defendants sought and procured renewal contracts with plaintiff for the next four biannual trade shows, including 2020.  In addition, the Utah defendants repeatedly solicited new or renewal business from at least ten other New Jersey pet company exhibitors during that time frame.

Given that conduct, the Utah defendants "purposely availed" themselves of doing business with New Jersey customers to a level sufficient to satisfy the criteria for in personam jurisdiction under the Due Process Clause.

In addition, the norms of fair play and substantial justice are not offended here.  Defendants could have included a forum selection clause in their form contract but failed to do so.  The parties have already taken depositions remotely, and defendants can request the trial court—in this modest non-jury case with few witnesses—to consider in its discretion allowing them to appear remotely at trial.

     After Hurricane Sandy struck New Jersey in October 2012, high water levels flooded several communities, causing extensive damage to infrastructure.  After the floodwaters receded, municipalities and businesses worked with their electric utility, Jersey Central Power & Light (JCP&L), to restore power on the boardwalk for the spring 2013 tourist season.  After being notified that required repairs had been completed and municipal inspectors had approved the repair work, JCP&L restored power to the boardwalk in May 2013.  Months later, a fire broke out, causing severe damage to boardwalk businesses.  After an investigation revealed that the source of the fire was likely malfunctioning electrical equipment which had been submerged beneath the boardwalk during the storm, multiple plaintiffs sued for damages, alleging negligence by various parties, including JCP&L. 

     Defendant JCP&L moved for summary judgment and the trial court granted it, finding plaintiffs' expert issued a net opinion on the question of JCP&L's duty to inspect customer owned electrical equipment.  The trial court next found plaintiffs failed to make any showing on the question of duty, warranting summary judgment.

     Plaintiffs appealed, contending the trial court erred by barring the expert's opinion and granting summary judgment dismissing plaintiffs' various theories which supported the proposition that there is an existing duty on the part of JCP&L to inspect customer owned and maintained equipment.  Plaintiffs further argued that if such a duty did not already exist, the severe nature of the superstorm and the JCP&L's "knowledge" that an electrical inspection may have been negligently performed at the fire origin site, supported the imposition of an enhanced duty to re-inspect the work of state-licensed municipal inspectors before restoring power.

     The court held that:  the trial court engaged in a proper exercise of discretion when it barred plaintiffs' expert testimony; public utility JCP&L had no duty to inspect the privately-owned electrical equipment of a commercial businesses as a pre-condition to restoring power.  The court therefore affirmed the trial court's order.

In this case of first impression, the court addressed the disclosure of a body worn camera (BWC) video statement recorded pursuant to the Body Worn Camera Law (BWCL), N.J.S.A. 40A:14-118.3 to -118.5, under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access. The recorded statement was made by a father, a plaintiff in the action, who had alleged sexual misconduct perpetrated against his special needs minor son by a relative. Law enforcement determined there was insufficient probable cause to charge.
The court concluded plaintiffs' argument that the BWCL's exemption provision, N.J.S.A. 40A:14-118.5(l), abrogates OPRA's exemptions was without merit. The court further concluded OPRA's exemption, N.J.S.A. 47:1A-9(b), applied to preclude disclosure of the BWC recording because our case law has long-established that information received by law enforcement regarding an individual who was not arrested or charged is confidential and not subject to disclosure. See N. Jersey Media Grp., Inc. v. Bergen Cnty. Prosecutor's Off., 447 N.J. Super. 182, 204 (App. Div. 2016). A review of the plain language of the BWCL's inspection provision, N.J.S.A. 40A:14-118.5(k), which provides that a review of a BWC recording is subject to OPRA, demonstrated the four exemptions listed in N.J.S.A. 40A:14-118.5(l) are in addition to OPRA's exemptions. Further, reading OPRA in pari materia with the BWCL demonstrated the Legislature did not intend to preclude the application of OPRA's exemptions to BWC recordings.
The court further rejected plaintiffs' argument they were entitled to the BWC recording under the common law right of access. The court concluded the common law right of access did not compel release of the BWC recording because under the balancing of interests factors established by the Supreme Court in Loigman v. Kimmelman, 102 N.J. 98, 113 (1986), law enforcement's and the individual's interests in confidentiality outweigh the public's and plaintiffs' interests in disclosure.
Therefore, the court affirmed the judge's order that plaintiffs were not entitled to disclosure of the BWC recording under either OPRA or the common law right of access.

This matter presents a question of first impression concerning the rights and responsibilities of New Jersey gun permit applicants under the Second Amendment to the United States Constitution as recently interpreted by the United States Supreme Court in N.Y. State Rifle & Pistol Assoc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022).    Petitioner appeals the denial of his application for a Firearms Purchaser Identification Card (FPIC) and a permit to purchase a handgun (PPH).  He raises several contentions, including a challenge to the constitutionality of a statute that requires denial of an FPIC/PPH application if it includes any knowingly false information, N.J.S.A. 2C:58-3(c). 

Bruen adopted a new test for resolving Second Amendment challenges, requiring modern regulations be consistent with this Nation's tradition of firearms regulation as shown by a well-established and representative historical analogue.  The court upholds the constitutionality of the falsification disqualification provision even though there appears to be no historical analogue for it.  Bruen acknowledged the constitutionality of "shall-issue" licensing regimes, which require gun permit applicants to file an application that prompts a background check.  Truthfulness on an application is an integral part of the background investigation process acknowledged in Bruen.  The falsification disqualifier safeguards the integrity of the licensing system without imposing additional substantive limits on who can purchase a firearm. 

The court further notes the plain text of the Second Amendment does not cover lying on an application form.  Because that conduct is not protected by the Second Amendment, the court concludes its regulation is not subject to the new "analogical" paradigm. 

The court also rejects petitioner's contention the falsification disqualifier applies only to material falsehoods.  Relatedly, the court rejects petitioner's contention the falsification disqualifier does not apply in this case because he retracted the false statement in his application during the Law Division hearing.  Petitioner's admission at the hearing that he had, in fact, been treated by a psychiatrist came too late, precluding the licensing authority from conducting a follow-up investigation before the hearing. 

Because the falsification disqualification provision categorically requires denial of petitioner's application, the court chooses not to address petitioner's facial and as-applied challenges to the trial court's alternative determination that issuance of an FPIC and PPH "would not be in the interest of public health, safety or welfare" under N.J.S.A. 2C:58-3(c)(5).

In this appeal, the court addressed the novel issue of whether N.J.S.A. 18A:16-6 allows school board employees to wait until the final disposition of a civil or administrative action filed against them before seeking defense costs and indemnification from a school board.  The court concluded an employee cannot wait until the action is completed and must provide the school board with reasonable notice after the initiation of the proceeding.  The court observed the procedure under N.J.S.A. 18A:16-6.1 is distinguishable, which provides that an employee cannot seek reimbursement of defense costs and indemnification until the conclusion of a criminal or quasi-criminal action. 

Petitioners sought reimbursement of attorney fees and costs from the Trenton Board of Education following the favorable resolution of an administrative action against vice principal, Maria Azzaro, stemming from alleged improper grading practices and other improprieties.  The court affirmed the Commissioner of Education's final agency decision denying petitioners' request and held that bringing an action under N.J.S.A. 18A:16-6 twelve years after the initiation of an administrative action was not reasonable under the facts of the case.

These two consolidated appeals by codefendant brothers in an armed robbery case concern a surveillance video recorded at the crime scene.  The key approximately six-second portion of the video shows three men, two of whom were allegedly armed, escorting the victim behind a deli moments before he was robbed.  The State contended the culprits in the video were the two brothers and their father.  The video was played without objection during the trial and the State's closing argument.

During its deliberations, the jury requested that the video be shown again multiple times, in slow motion and with pauses.  Over defense counsel's objection, the trial judge granted the jury's requests, and the videos were replayed in the courtroom under the judge's supervision.  On appeal, defendants argue the slow-motion video replays were unduly prejudicial, citing research showing that such slow-motion replays can increase juror perceptions of an actor's intentionality.

In this opinion of first impression, the court holds that, subject to offsetting concerns of undue prejudice, surveillance video footage may be presented to jurors during a trial and in summation in slow motion or at other varying speeds, or with intermittent pauses, if the trial court in its discretion reasonably finds those modes of presentation would assist the jurors' understanding of the pertinent events and help them resolve disputed factual issues.

The courts further holds—again subject to offsetting concerns of undue prejudice—that trial judges in their discretion may grant a jury's requests during deliberations to replay the videos in such modes one or more times, provided that the playbacks occur in open court under the judge's supervision and in the presence of counsel.

Going forward, the court offers several non-exclusive factors to assist judges when considering whether to allow surveillance videos to be shown in varying speeds or with intermittent pauses during the trial and summations, and on a jury's request during deliberations.  The court further recommends that the Model Criminal Jury Charge Committee consider crafting an instruction to guide jurors when surveillance videos are presented in such modes.

Other issues raised on appeal are addressed in the unpublished portion of this opinion.

In this medical malpractice action, plaintiff, as administratrix ad prosequendum for the estate of decedent, sued a nursing facility and a hospital alleging negligent care that resulted in pressure wounds and, ultimately, decedent's physical decline and death.  Plaintiff asserted direct claims of administrative negligence against both facilities as well as claims based on vicarious liability for nursing malpractice.  Plaintiff served a single affidavit of merit ("AOM") executed by a registered nurse who opined that the nursing home, the hospital, and members of their nursing and nursing administrative staff deviated from the applicable standards of care.  The AOM did not distinguish between the nursing staffs at the separate facilities and did not name any individual nurses.

The trial court conducted two Ferreira conferences.  Defendants objected to the AOM because the nurse who executed it was not qualified to render an opinion as to direct administrative negligence claims against the facilities and the AOM did not identify any individual nurses for whom the facilities could be held vicariously liable.  Plaintiff did not seek to conduct any pre-AOM discovery and declined the opportunity to serve a supplemental AOM.  Defendants moved to dismiss for failure to serve an appropriate AOM, and the trial court dismissed the complaint on that basis.  Plaintiff subsequently settled her claims against the hospital.  On appeal, plaintiff abandoned her direct administrative negligence claim against the nursing home and proceeded based only on vicarious liability.

The court affirmed, concluding the AOM was not sufficient to support plaintiff's vicarious liability claim because it indiscriminately combined the nursing staffs of two separate facilities and did not identify any individual nurses.  The court also concluded plaintiff's claim was in essence an administrative negligence claim because it was based on the nursing home's systemic failure to provide adequate care rather than a claim based on the negligence of any individual nurses.

The main issue in this criminal appeal is whether the Luring, Enticing Child by Various Means statute, N.J.S.A. 2C:13-6(a), requires the State to prove a defendant lured or enticed a "child," in this case an undercover law enforcement officer posing as a fourteen-year-old girl, into traveling or accompanying the defendant to some location other than the victim's own home.

The court rejects defendant's contention that because he enticed the "child" to meet him alone, and defendant traveled to the "child's" home, a judgment of acquittal should have been entered.  By its plain language, the statute forbids an adult from "luring or enticing a child to meet or appear at any other place."  The child's home can be the "other place."  Here, that location is a place "other" than where the defendant was when he communicated with the child.

There is no reason to construe the expansive language of "any other place" as somehow containing an unwritten exception for places where the child is already located.  When the prohibited meeting was arranged, the course of action into which the child was lured was staying alone, isolated, and vulnerable.

Applying these principles, the court affirms the conviction and sentence for second-degree luring, N.J.S.A. 2C:13-6 (a); second-degree attempted sexual assault, N.J.S.A. 2C:5-1(a)(3) and 2C:14-2(c)(4); third-degree attempted endangering the welfare of a child, N.J.S.A. 2C-24-4(a)(1); 2C:5-1(a)(1) and (a)(3); and third-degree attempted promoting obscene material to a minor, N.J.S.A. 2C:34-3(b)(1), 2C:5-1(a)(1) and (a)(3).

The unpublished portion of this opinion rejects unrelated arguments raised by defendant alleging evidentiary errors.

         In this appeal, the court considers whether a non-resident, religious organization is subject to personal jurisdiction in New Jersey related to allegations of sexual abuse of a child in New Jersey by a priest of the religious organization.  Plaintiff D.T. alleges that Michael McCarthy, a former Catholic priest, sexually abused him in New Jersey in 1971.  At that time, plaintiff was fourteen years old, and McCarthy was serving as a priest and teacher in the Archdiocese of Philadelphia (the Archdiocese).  Plaintiff appeals from an order dismissing his claims against the Archdiocese for lack of personal jurisdiction.  Because there are no facts establishing that the Archdiocese purposefully availed itself of any benefits in or from New Jersey related to McCarthy's alleged abuse of plaintiff, the court affirms.

In this appeal, the court considers whether a non-resident, religious organization is subject to personal jurisdiction in New Jersey related to allegations of sexual abuse of a child in New Jersey by a priest of the religious organization.  Plaintiff alleges that Father John Butler, a Catholic priest, sexually abused him from approximately 1995 to 1998, when plaintiff was approximately nine to twelve years old.  At that time, Butler was serving as a priest in New Jersey, and the Diocese of Richmond, Virginia (Richmond) had encouraged and allowed Butler to go to New Jersey to serve as a priest, knowing that Butler had sexual propensities towards children.

Richmond appeals from an order finding that it was subject to specific personal jurisdiction in New Jersey related to Butler's actions in New Jersey.  Because the facts establish that Richmond purposefully availed itself of the benefits of allowing Butler to go to New Jersey to serve as a priest, the court holds that there is specific personal jurisdiction over Richmond and affirms.