Published Appellate Court Opinions

Defendant's municipal clerk determined that plaintiffs' petition for a referendum on a rent-regulation ordinance lacked sufficient signatures; the clerk's decision resulted from her discerning of differences between some of the petition's e-signatures and the corresponding voters' pen-and-ink signatures on the voter rolls. The court affirmed the trial judge's determination that the clerk acted arbitrarily and capriciously because, among other things, the court found it was unreasonable, in light of the limiting circumstance of the COVID-19 pandemic, and the Governor's emergency order precluding door-to-door solicitations, for the clerk not to reach out and provide voters with an opportunity to cure any alleged uncertain signatures before attempting to disenfranchise them from the referendum process.

On January 22, 2019, the staff of the Board of Public Utilities issued a "Cease and Desist and Refund Instructions" Letter (2019 Letter) stopping third-party suppliers of electricity generation and transmission from passing through a price increase to their fixed- or firm-rate customers when those increases were allegedly due to a new provision of the Clean Energy Act, L. 2018, c. 17 (eff. May 23, 2018). Appellant, an organization representing these suppliers, filed a petition with the Board seeking the withdrawal of the 2019 Letter. Two other providers, together with the Division of Rate Counsel, asked to participate in the matter.

Although the Board's Secretary later offered other providers the opportunity to "reach resolution and close out the matter" and "thereafter be released" from the terms of the 2019 Letter, the Board never addressed appellant's petition asking that the directive be withdrawn in its entirety. After waiting over twenty months for the Board to act, appellant filed a notice of appeal from the Board's inaction.

Under these circumstances, the court remanded the matter and directed the Board to consider and resolve appellant's petition within sixty days of the date of the remand.

An Ocean County Prosecutor's Office (OCPO) detective was operating a county vehicle while performing official duties when she struck another vehicle injuring a passenger. After the passenger sued the OCPO and the detective for personal injuries, the State agreed to defend and indemnify both defendants. However, the State asserted that pursuant to N.J.S.A. 59:10A-5 it could avail itself of the County's self-insurance and excess insurance policies mandated by N.J.S.A. 40A:10-3 as the primary sources to satisfy any judgment or settlement in the tort case. The State sued the County seeking a declaratory judgment to this effect. The trial court dismissed the complaint.

On appeal, the court affirmed and held that N.J.S.A. 59:10A-5 grants the Attorney General the ability to direct who shall take up the defense on behalf of the State. However, pursuant to Wright v. State, 169 N.J. 422 (2001), where an employee is entitled to a defense by the State, the State shall also bear the costs of indemnification. N.J.S.A. 59:10A-5 does not alter the State's obligation to defend and indemnify utilizing its resources.

This court held that the exclusionary rule applies where police violate Article I, Paragraph 7 of the New Jersey Constitution by unreasonably and unjustifiably ignoring a search warrant requirement that they knock and announce their presence before entering a dwelling. Doing so deters police from flagrantly violating knock-and-announce search warrant requirements; safeguards against unconstitutional, unreasonable, and illegal search and seizures under New Jersey law; and, importantly, upholds the rule of law and integrity of our administration of justice.

In this appeal, the court held that the Legislature intended prospective application of the amended refusal statute, N.J.S.A. 39:4-50.4a. That intent was manifested by the Legislature's express statement that the amended legislation—which imposed on all defendants convicted of refusal the less onerous penalty of installing an interlock device rather than forfeiting his or her license as mandated by the former statute—would become effective on December 1, 2019, over four months after it was signed into law, and apply only to those defendants who committed an offense on or after that date. That unequivocal legislation pronouncement militates against retroactive application even for defendants who were sentenced after December 1, 2019.

In such circumstances, courts need not consider the common law exceptions to the presumption of prospective application as discussed in Gibbons v. Gibbons, 86 N.J. 515 (1981) and James v. New Jersey Manufacturers Ins. Co., 216 N.J. 552 (2014), nor the timing of the penalty incurred under the general savings statute, N.J.S.A. 1:1–15. The Legislature's determination that interlock devices serve as a greater deterrent than license forfeiture supports the conclusion that the amended legislation was neither ameliorative nor curative, in any event.

On leave granted, the court holds that the tax filings of corporations and other businesses receive the same presumption of confidentiality as individual tax records. Hence, the heightened requirements for disclosure specified in Ullmann v. Hartford Fire Ins. Co., 87 N.J. Super. 409 (App. Div. 1965), apply to such business tax filings as well.

As Ullmann instructs, a civil litigant can only obtain an opposing party's tax filings through discovery by demonstrating to the court: (1) the filings are relevant to the case; (2) there is a "compelling need for the documents because the information likely to be contained within them is "not otherwise readily obtainable" from other sources; and (3) disclosure would serve a "substantial purpose." Id. at 415-16.

After appellants’ home was severely damaged by Superstorm Sandy, they defaulted on their mortgage loan. Their flood insurer paid out $150,000 in benefits for the damage.

Pursuant to the contract terms, the lender’s assignee held the insurance funds in escrow, while it decided whether repairs to the house would be "economically infeasible" or would lessen its security.

Over three years passed before the lender ultimately applied the insurance proceeds to the homeowners' outstanding debt. During that lengthy interval, over $40,000 in mortgage interest accrued.

The homeowners unsuccessfully argued to the Chancery judge they were entitled to a credit on the foreclosure judgment for that portion of the interest, due to the lender’s allegedly unfair conduct.

Consistent with principles of fairness and reasonableness set forth in the Restatement (Third) of Property (Mortgages) (1997), this court holds the lender in such situations owes the borrower an implied covenant of good faith and fair dealing in determining how to dispose of the property or flood insurance funds.

If the lender unreasonably delays making a decision about the proposed use of the insurance funds for repairs, the Chancery judge has the equitable power to abate the mortgage interest that accumulated in the meantime. Additionally, the lender must place the insurance funds in an interest-bearing, segregated account until the proper use of those funds is resolved.

Having announced these governing principles, the court remands this matter to Chancery Division to develop the record more fully and evaluate whether the mortgage company breached the implied covenant.

In this latest appeal arising from executive orders (EOs) issued by the Governor of New Jersey in response to health-related emergencies caused by the spread of the COVID-19 coronavirus, plaintiff JWC Fitness, LLC, which until October 2020 operated a kickboxing business, claimed entitlement to compensation under the New Jersey Civil Defense and Disaster Control Act (Disaster Control Act), N.J.S.A. App. A:9-30 to -63, for the closure and limitations placed on its business under some EOs.

According to plaintiff, the EOs that temporarily limited and shut down the operations of health clubs, including gyms and fitness centers, effectively "commandeered and utilized" its property under N.J.S.A. App. A:9-34, such that the State must establish an "emergency compensation board" under N.J.S.A. App. A:9-51(c), in order to provide "payment of the reasonable value of such . . . privately owned property." N.J.S.A. App. A:9-34. Plaintiff also sought a declaratory judgment that the EOs effectuated a taking of its property without just compensation, in violation of the New Jersey Constitution, art. I, ¶ 20, and the United States Constitution, amends. V and XIV.

The court concluded that plaintiff's arguments were without merit as the statutory standard for compensation had not been implicated, and the EOs did not effectuate a taking of plaintiff's property within the meaning of the state and federal constitutions.

In this action to foreclose a tax sale certificate, plaintiff appeals from three Chancery Division orders. The first denied plaintiff's motion to bar redemption and impose a constructive trust. The second granted the respondent investor's motion to intervene and permit redemption. The third denied plaintiff's motion to set the time, place, and amount of redemption as moot.

The court held that when an investor has an interest in the property in foreclosure, is prepared to redeem the tax sale certificate, and files a motion to intervene in the foreclosure action before the entry of an order setting the last date for redemption, the investor is permitted to intervene and redeem the tax certificate. Accordingly, the court affirmed the three orders entered by the trial court.

The court holds that the Mayor of the City of Newark has the authority, as a managerial prerogative, to mandate that all City employees be fully vaccinated against COVID-19. Nine unions representing City employees filed unfair labor practice charges against the City with the Public Employment Relations Commission (PERC) and requested an injunction to prevent the implementation of the mandate before the City negotiated with the unions. A Director of PERC issued an order granting in part and denying in part the unions' request for preliminary injunctive relief.

On leave granted, the court affirms the portion of the PERC order that held that the Mayor has a managerial prerogative to issue the mandate but vacates the portion of PERC's order that imposed restraints on the City or required any negotiations concerning the implementation, timing, or enforcement of the City's vaccination mandate.

Plaintiff Morgan Dennehy appeals from a February 18, 2020 order denying her motion for reconsideration of a previous order granting summary judgment to defendants East Windsor Regional Board of Education, Hightstown High School, James W. Peto, Todd M. Peto, and Dezarae Fillmyer. Plaintiff was a student at Hightstown High School and a member of the field hockey team. On September 9, 2015, the field hockey team was waiting for its scheduled practice on Hightstown High School's turf field to begin and was conducting drills in the "D-zone," an area between the recently renovated turf field and the track. Some members of the team were participating in the drills while others watched. A twenty-foot-tall ball-stopper is located at each end of the turf field and separates the "D-zone" from the turf field. While the field hockey team was practicing drills in the "D-zone," the boys soccer team was practicing on the turf field and plaintiff observed several soccer balls vault the ball stopper. After the team concluded its drills, plaintiff asked defendant Coach Fillmyer if she could take a shot on goal. Defendant agreed because plaintiff rarely had the opportunity to shoot on goal. Plaintiff left the area directly behind the ball stopper and, after she finished shooting, she was struck in the back of the neck by an errant soccer ball that went over the ball stopper. Plaintiff was later taken to the hospital and was diagnosed with a concussion. Plaintiff filed suit alleging that defendants were negligent and negligent in hiring, retaining, training, and supervision of employees.

On appeal, plaintiff argues that the motion judge erroneously applied the heightened recklessness standard set forth in Crawn v. Campo, 136 N.J. 494 (1994). After reviewing the applicable case law, the court concluded that the motion judge erred in applying the heightened recklessness standard from Crawn. In this case, defendant Fillmyer was not a co-participant who directly injured plaintiff and, therefore, Crawn does not apply.

The court also determined that Rosania v. Carmona, 308 N.J. Super. 365 (App. Div. 1998) does not apply to this case. In Rosania, a martial arts instructor participated in a sparring match with a student and kicked the student in the head causing his retina to detach. The martial arts dojo had a written rule that prohibited targeting of the head. The Rosania panel determined that if the jury found the risks inherent in the karate match were materially increased by an instructor beyond those reasonably anticipated by the dojo rules, it should have been charged on the ordinary duty owed to business invitees rather than the heightened recklessness standard for competitive contact sports. The court declined to apply Rosania in this case for two reasons: first, defendant Fillmyer was not a co-participant; and second, the Rosania panel's decision was informed by cases decided by the New York Court of Appeals which contemplated a different heightened standard. The court concluded that because defendant in this case is a public employee, her duties, responsibilities, and immunities are clearly established in the New Jersey Tort Claims Act N.J.S.A. 59:1-1 to 12-3, and thus defendant is liable to the same extent as a private person for her negligence and the ordinary negligence standard should govern this case.

Defendant Centurion Companies, Inc. subcontracted demolition work it agreed to perform for Alfred Sanzari Construction to plaintiff JHC Industrial Services, Inc. JHC did the work and Sanzari paid Centurion for it. Centurion, however, did not pay JHC in full, prompting this action under the Prompt Payment Act. Although JHC completely prevailed after two years of litigation and trial, the judge refused its application for $104,670.51 in fees pursuant to N.J.S.A. 2A:30A-2(f), awarding it only $16,375.73. The judge reasoned it could not "[u]nder Rendine . . . grant over $100,000 in fees on a judgment that could not have exceeded $30,500."

The court reverses and remands for reconsideration of the fee award. The Prompt Payment Act is a fee-shifting statute that makes an award of "reasonable costs and attorney fees" mandatory to a prevailing party; the judge erred in reading in a proportionality requirement not included in the statute.

The main issue in this appeal from the trial court's denial of defendant's suppression motion without a testimonial hearing is whether the officer violated defendant's rights when he patted him down a second time, just minutes after the officer patted him down the first time and uncovered no weapons. The court concludes that an officer may conduct a second pat-down when, giving weight to the unproductive first one, the circumstances preceding the second one still give the officer reason to believe the suspect is armed and dangerous. Because there exist issues of fact material to that question, the court reverses the trial court's order and remands for a testimonial hearing.

Defendant Dwayne D. Boston was convicted of third-degree possession of cocaine following a routine traffic stop on his way home from the movies with his wife and children. He contends the police unlawfully asked him, a front-seat passenger in his wife's car, to hand over his State identification card after he told them he did not have a driver's license. The court agrees, and concludes defendant's subsequent arrest on an open traffic warrant was unlawful, and the drugs seized in the ensuing search incident to his arrest should have been excluded at trial.

The court holds in a routine traffic stop where the driver has to be arrested on an open traffic warrant, the officer's asking whether a passenger is a licensed driver is reasonable; but when the passenger claims he does not possess a license, the officer's further demand for identification from the unlicensed passenger in the absence of particularized suspicion is not.

A sprinkler head discharged for no apparent reason at plaintiff's property and flooded two floors. A major tenant immediately cancelled its lease, and plaintiff made claims under an insurance policy issued by defendant. Defendant hired an expert to examine the sprinkler head; he concluded that defendant had no subrogation claim because it could not prove the cause of the discharge.

Plaintiff requested that defendant preserve the sprinkler head for its expert's examination. However, defendant's expert had already disposed of it. Plaintiff retained its own expert, who concluded the cause of the discharge was either a product defect, faulty installation, or faulty maintenance/inspection, but he could not conclude which of those possibilities was more likely. Plaintiff filed suit, alleging intentional and negligent spoliation of evidence. After discovery, the judge granted defendant summary judgment.

The court concluded that plaintiff was not entitled to an "adverse" or "spoliation" inference against defendant, which was not the third-party target defendant. The court also concluded that although other states have adopted modified proximate cause standards to permit a plaintiff to demonstrate a prima facie spoliation case despite the loss of critical evidence, our Court has not addressed the issue. Instead, relying on traditional negligence principles, the court concluded that, given its expert's indefinite conclusions, plaintiff failed to establish a prima facie case of proximately caused injury and damages. The court affirmed the grant of summary judgment.

Plaintiffs, police officers employed by the City of Trenton who were on work-related temporary disability and their police union, appealed the dismissal with prejudice of their declaratory judgment complaint against the State of New Jersey and the denial of their cross-motion to amend the complaint.

Plaintiffs sought relief from the State Health Benefits Program (SHBP), N.J.S.A. 52:14-17.25 to -17.46a., which requires all public employees to contribute to the cost of their health benefits plan based on their "base salary." Plaintiffs argued that cost of their SHBP benefit contributions while disabled should be calculated based on the temporary disability benefits they receive, not their "base salary."

The State moved pursuant to Rule 4:6-2(e) to dismiss the complaint with prejudice based on the plain language of the statute. The plaintiffs' cross-motion to amend the declaratory judgment complaint sought alternate relief, declaring that recipients of temporary disability benefits should not make any contributions to the SHBP while disabled.

Applying well-established principles of statutory construction, the court held that temporary disability benefits are not "base salary" for purposes of the SHBP. The court also held that the denial of plaintiffs' cross-motion to amend the complaint was not an abuse of discretion where the unambiguous language of the statute rendered the proposed amendment futile.

Plaintiff appealed the grant of summary judgment to her landlord. Plaintiff alleged that defendant's maintenance man, a fellow tenant of plaintiff, sexually assaulted her minor children. Plaintiff's complaint stated several causes of action, but the only two preserved for appeal were that defendant was directly negligent pursuant to Restatement (Second) of Agency, section 219(2)(b), and vicariously liable for the sexual assaults, pursuant to section 219(2)(d), which both provide exceptions to the general rule that an employer is not liable for the acts of its employee outside the scope of his or her employment.

The court affirmed the grant of summary judgment, noting that our courts have applied both of those sections of the Restatement Second in limited circumstances to serve the purposes of remedial legislation, like the LAD, CEPA and the Child Sexual Abuse Act, but not in similar factual circumstances. Additionally, the court examined the significant revisions made to both these sections of the Restatement Second by the Restatement (Third) of Agency and examined decisions from other jurisdictions that discussed these sections of the Restatements.

In these three appeals, the court affirms the trial court's order dismissing without prejudice a six-count indictment against a physician, and her medical assistant and office manager. The State alleged the medical assistant practiced medicine without a license; she and the physician fraudulently billed for the medical assistant's services under the physician's name; and all three individuals conspired to commit this fraud. The trial court did not abuse its discretion because, most significantly, the prosecutor failed to adequately and accurately instruct the grand jury about what a medical assistant may do without encroaching upon the licensed practice of medicine. And, because the law does not clearly draw a line around a medical assistant's scope of allowable activities, prosecuting someone for crossing the line may violate the right to fair warning. The prosecutor also improperly referred to additional evidence that he did not present to the grand jury, and presented a questionable analysis of the amount of money involved in the charged offenses. And the indictment lacked sufficient detail to give defendants a fair opportunity to mount a defense.

Although the trial court had dismissed a previous indictment against defendants, the trial court also appropriately declined to dismiss the second indictment with prejudice, as there was insufficient evidence of prosecutorial vindictiveness.

These appeals arise from two motor vehicle accidents that occurred about a year apart in approximately the same location under similar circumstances. In both instances, a driver traveling westbound on Route 322 in Folsom Borough made an illegal left turn in the direction of one of two driveway entrances to a WaWa convenience store and struck a motorcycle traveling eastbound on the highway. In the first accident, the motorcycle driver was killed and his wife, who was a passenger, seriously injured. In the second accident, the motorcycle driver was seriously injured. The injured parties and the estate of the decedent filed suits against the entity that owns the convenience store and the State, which owns the highway and the land on which the store's driveway entrances are situated, alleging a number of claims sounding in negligence.

The court held that the commercial landowner who operates the convenience store did not owe a duty of care to plaintiffs to prevent drivers on the adjoining State highway from making an illegal left turn into the store's parking lot entrances. In addition, the court declined plaintiffs' invitation to impose on commercial property owners the obligation to warn business patrons of the obvious danger posed by driving over two sets of solid yellow lines to cross two lanes of opposing traffic on a highway with a fifty-five-mile-per-hour speed limit to enter a store parking lot. The court noted a nearby jug handle provided westbound drivers a safe alternative to access the store's parking lot through an intersection controlled by a traffic light.

The court also concluded the State is entitled to immunity for all claims asserted against it under three provisions of the Tort Claims Act: (1) law enforcement immunity, N.J.S.A. 59:2-4, for its alleged failure to enforce its regulations with respect to the design of the parking lot driveway entrances; (2) licensing immunity, N.J.S.A. 59:2-5, for any permitting decision, or alleged absence thereof, related to the construction and maintenance of the driveway entrances; and (3) inspection immunity, N.J.S.A. 59:2-6, for any alleged failure to inspect the driveway entrances during two highway improvement projects after their construction. In addition, the court found the statutory exception to immunity for dangerous conditions of public property did not apply because the driveway entrances, which were in the State's right-of-way, were not dangerous conditions and use of the driveway entrances with due care did not create a reasonably foreseeable risk of the injuries suffered by plaintiffs, which were caused by the illegal activity of the drivers who struck their motorcycles.

The Municipal Vacancy Law, N.J.S.A. 40A:16-1 to -23 (the Vacancy Law), sets out the procedure for filling vacancies in the office of mayor and members of a municipal council. Here, when a vacancy was created in a ward council seat, the remaining members of the city council resolved pursuant to N.J.S.A. 40A:16-5(b) not to fill the vacancy on an interim basis. The local party committee, however, relying on N.J.S.A. 40A:16-11, forwarded three nominees to the council, which refused to appoint any of them and retained the vacancy.

Plaintiffs, the nominee of the party committee and the committee, filed a complaint seeking to seat the nominee as ward councilperson and also alleging the council's refusal to seat the nominee violated the New Jersey Civil Rights Act (NJCRA). The trial judge found in plaintiffs' favor, ordered the nominee seated as ward council person, found a violation of the NJCRA, and awarded counsel fees and costs to plaintiffs.

The court reversed, construing the Vacancy Law as initially enacted in 1979, along with later amendments in 1980 and 1990, as providing the governing body with discretion to fill the vacancy on an interim basis or leave the seat vacant until the next general election.