Published Appellate Court Opinions

The novel issue presented in this appeal is whether a claim of self-defense applies to a charge of endangering an injured victim, N.J.S.A. 2C:12-1.2(a), when the injured victim has been injured by the defendant in the course of defending himself against said victim.

Following a jury trial, defendant was acquitted of murder and weapons offenses but convicted of endangering an injured victim, whom he admitted stabbing in self-defense after an altercation during which the victim forbade defendant from entering a store, threatened to beat defendant up, and threw a punch when defendant refused to heed the warnings. Defendant dodged the punch and stabbed the victim once in the chest with a knife defendant had produced from his pocket and brandished during the altercation. After the stabbing, the victim staggered around before collapsing on the ground and defendant left the scene without calling for medical assistance. The victim was later transported to the hospital where he died from the stab wound the following morning. Video surveillance footage of the entire five-minute encounter was played at the trial.

The trial judge instructed the jury on self-defense as applied to the homicide and weapons-related charges, but not the endangering charge. At trial, defense counsel neither requested the charge nor objected to its omission. However, on appeal, defendant argued the charge should have been given because self-defense applied to endangering.

After analyzing the general principles pertaining to justification defenses and considering the elements and legislative history of the endangering an injured victim statute, the court concluded that its omission in the unique facts presented in this case does not rise to the level of plain error. The court reasoned that when defendant left the scene, it was clear that his conduct had rendered the victim physically helpless such that he no longer posed a threat to defendant or anyone else. Because the victim was physically helpless, defendant could not have had a reasonable belief in the continued need to use force or the requirement to retreat without summoning medical assistance to justify self-defense. Rather than imposing an obligation on defendant to secure the safety of his attacker while endangering himself, the application of the endangering statute in this case sought to preserve a life after the threat or need for force had been neutralized.

Judge Sabatino joins in the result and issues a concurring opinion. The concurrence underscores the court's recognition that principles of self-defense, necessity or other justification may appropriately apply in some factual situations to relieve a crime victim, who has repelled and injured an attacker, of criminal liability under N.J.S.A. 2C:12-1.2(a).

Defendant owned a trampoline park and required that adults who brought minors to the facility electronically execute a waiver of rights that also included an arbitration agreement at a computer station prior to entry. The adult would necessarily have to certify he/she was the parent or legal guardian of the minor or had been granted power-of-attorney to execute the waiver on behalf of the child's parent. Third-party defendant listed plaintiff's child as one of the minors seeking entry to the facility and executed the waiver. Plaintiff's child fractured his leg while using the trampolines.

Defendant sought summary judgment dismissing the complaint and compelling arbitration of plaintiff's negligence claims. Defendant argued that it reasonably believed in the third party's "apparent authority" to execute the waiver on plaintiff's behalf. The judge denied defendant's motion and defendant appealed as of rights.

The court affirmed, rejecting defendant's argument that it was entitled as a matter of law on the motion record to rely on the doctrine of apparent authority to enforce the waiver and compel arbitration. In particular, the court examined the provisions and commentary of the Restatement (Third) of Agency regarding the doctrine of apparent authority.

Defendant appealed from a final restraining order (FRO) entered against her pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, based on a predicate act of harassment, N.J.S.A. 2C:33-4(a). This court reversed because the trial court did not conduct the required legal analysis necessary to enter the FRO under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006) and the record did not demonstrate plaintiff needed future protection. Further, our review of the record also disclosed defendant was deprived of due process due to numerous trial irregularities in the remote proceeding, including that defendant had insufficient notice and opportunity to prepare a defense in her case, plaintiff's witness was not sequestered, plaintiff testified in the witness's presence with witness coaching plaintiff, and the trial court engaged in inappropriate questioning of defendant.

This appeal implicates the proper application and limitations of Rule 1:13-7, an administrative "docket-clearing rule." The court considered two issues: (1) whether the good cause or exceptional circumstances standard applies for reinstatement of the complaint in a multi-defendant case, where no defendants have appeared in the case and participated in discovery; and (2) whether the rule empowers the trial court to dismiss a complaint with prejudice in response to a motion filed by the nondelinquent party.

The court concluded the trial court misapplied the exceptional circumstances standard under Rule 1:13-7, thereby preventing adjudication of plaintiffs' claims on the merits. In that regard, the trial court mistakenly exercised its discretion by denying plaintiffs' motion to reinstate their complaint. The court also held that Rule 1:13-7 neither empowers a trial court to dismiss a cause of action with prejudice nor authorizes a party in a case to affirmatively seek such a drastic sanction as a form of relief.

Accordingly, the court reversed and remanded the order under review so the underlying medical malpractice action can be decided on the merits.

In 2019, three women alleged that J.D. sexually assaulted them years earlier when they and J.D. were minors. The State filed juvenile delinquency complaints against J.D. and moved to waive certain charges to the Criminal Part to try J.D. as an adult on the alleged assaults that occurred when he was between the ages of fifteen and seventeen.

The issue on this appeal is whether the waiver proceedings should be governed by the current statute, N.J.S.A. 2A:4A-26.1, which became effective in March 2016, or by a hybrid of the current statute and one provision of the statute in effect at the time of the alleged offenses, N.J.S.A. 2A:4A-26(e). The court holds that the current statute governs.

The mother of an infant girl was unable to identify the father, so defendant was not a specified party to the KLG action the Division instituted shortly after his daughter's birth because the mother's disabilities rendered her unable to care for her daughter. Defendant remained incarcerated for the greater part of the first twelve years of her life but, after he learned of the child and established paternity, applied for visitation. By then, the child had been in the care and custody of the KLG guardian. Eventually, the trial court amended the KLG judgment and granted defendant limited contact with his daughter.

After a series of motions relating to that contact, defendant sought visitation and vacation of the KLG judgment. The trial court granted limited contact with the child—then twelve years old—and refused to address the motion to vacate the KLG judgment, concluding res judicata precluded such an application.

We reversed, determining the court erred because res judicata did not bar defendant's application to vacate the judgment rendered in an action to which he was not a party and involved proofs related solely to the mother, not defendant. We recognized the KLG judgment did not abrogate defendant's parental rights.

We reviewed the statutory grounds for vacating a KLG judgment under N.J.S.A. 3B:12A-6(f) and 3B:12-6(g), the procedures that should be followed and the criteria analyzed in determining the child's best interests when a non-party seeks to vacate a KLG judgment.

Defendant appealed from a declaratory judgment finding the marital agreement (MA) she and her former spouse signed eight months after they married was a valid, enforceable agreement. And, she appealed from the final judgment of divorce (JOD) that incorporated the MA. We conclude the trial court erred by deeming the agreement to be in the nature of an enforceable pre-marital agreement. The parties' mid-marriage agreement was negotiated and executed after they wed, and the inherently coercive circumstances accompanying the making of the agreement here warranted heightened judicial scrutiny to assure it was fair and equitable. Therefore, we reverse the declaratory judgment and that portion of the JOD which enforced the MA, vacate the denial of defendant's counsel fee request, and remand for further proceedings. We identify factors the trial court should consider on remand when assessing whether to enforce the agreement.

The court reverses the final judgment in this quiatimet and ejectment action that divested defendant State of New Jersey of its title to seven parcels of land in the Preservation Area of the Pinelands National Reserve, consisting of over 250 acres, and granted title to those properties to an adjoining landowner, plaintiff Phoenix Pinelands Corporation, operator of a grandfathered sand and gravel mine. The court declares Phoenix's surreptitious, two-decade-long quest to undermine and cloud the State's title to the properties and establish its own competing chains of title — by plotting and resurveying the titles from the original grants from the Council of Proprietors of West Jersey, searching those titles forward, purchasing the fractional interests of the descendants of long-dead record title holders, convincing the tax assessor of Little Egg Harbor to make Phoenix's principal, David Denise, the assessed owner of the State's properties, consolidating the State's lands with Phoenix's sand mine, and having the State's parcels wiped off the tax map — the nefarious acts of a title raider, which should have barred it from any relief in a court of equity.

Having declared Phoenix's attempted annexation of the State's lands as violative of public policy, the court imposes a constructive trust on the "title" Phoenix acquired to one of the State's seven parcels, finding the State equitably entitled to the parcel upon payment to Phoenix of the sum it paid to acquire it, plus simple interest, and further finds Phoenix failed to establish title to any of the State's remaining six parcels under theories of quia timet or ejectment.

Accordingly, the court remands for entry of judgment in recordable form, following the State's tender of payment as described above, declaring Denise and Phoenix have no interest in these State lands and adjudging the State the owner of each parcel in fee simple.

Plaintiff Stephen Lanzo III filed a complaint alleging he contracted mesothelioma due to his long-term use of talc products that contained asbestos. His spouse asserted a claim for the loss of her husband's services, society, and consortium. The case was tried before a jury, which returned a verdict against defendants Johnson & Johnson Consumer, Inc. (JJCI), and Imerys Talc America, Inc. (Imerys).

We reverse the judgment and remand the matter to the trial court for new, separate trials against JJCI and Imerys. We conclude the trial court erred by permitting plaintiffs' experts to testify that non-asbestiform mineral fragments can cause mesothelioma because the experts' theory was not generally accepted in the scientific community and lacked support in a publication reasonably relied upon by other experts in the field.

We also conclude the trial court did not mistakenly exercise its discretion by providing an adverse inference instruction to the jury based on Imerys' discovery violations and failure to retain relevant evidence. We decided, however, that the trial court erred by failing to sever the claims against JJCI because the adverse inference instruction was unduly prejudicial to JJCI, which had no role in the discovery violations or the spoliation of evidence.

This matter arises out of an emergent application by the Borough Clerk of East Newark. The court granted him permission to file a motion on short notice to stay, pending appeal, the trial court's order directing the Borough to place a ballot question to reclassify East Newark from a Type I to a Type II school district on an April 20, 2021 special election ballot even though the Borough was not conducting an election on that day.

Following receipt of the motion briefs in which the parties addressed the merits and not the standard for stay pending appeal, the court exercised its authority under Rule 2:8-3(b) to decide the case summarily. Because N.J.S.A. 18A:9-5 permits a reclassification question in a Type I district to be presented to voters only "at the next municipal or general election," and the April 20 special school election is neither, the court reversed and remanded for dismissal of the School Board's complaint.

This administrative agency case concerns the application of the so-called "ABC Test," N.J.S.A. 43:21-19(i)(6) (A), (B), and (C), in classifying whether drywall installers utilized by appellant at various installation sites are either its employees or, conversely, independent contractors, for purposes of liability for contributions to the state unemployment and temporary disability compensation (“UCL”) fund, N.J.S.A. 43:21-7.

Following a review of records, an auditor from the Department of Labor and Workforce Development concluded that about half of the drywall installers who provided services for appellant during the pertinent years had been improperly classified as independent contractors rather than as appellant’s employees. As to those particular installers, the auditor assessed appellant for unpaid contributions to the fund. Appellant disputed those findings of misclassification, and an administrative hearing ensued.

After the hearing, an administrative law judge (“ALJ”) applied the ABC factors and concluded three of the individual installers had been misclassified as independent contractors. However, the ALJ found that certain other installers who had formed and operated bona fide corporations or limited liability companies ("LLCs") during the audit period and should not be deemed appellant’s employees in this regulatory context.

On further review, the Commissioner of the Department issued a final agency decision reinstating in full the auditor's findings. Applying the ABC Test, this court affirms the Commissioner’s decision in part as to certain installers and reverses in part as to others. In particular, the evidence supports the ALJ’s decision that part A (insufficient control of the work) and part B (work performed away from appellant’s business office) of the ABC test were fulfilled. The evidence concerning part C (independent operation of a business) varies by installer and requires partial reversal of the Commissioner’s decision.

In the course of its analysis, this court rejects the Commissioner’s reliance on an income tax statute, N.J.S.A 42:2C-92, as grounds to “disregard” in this UCL contribution context the entity status of single-member LLCs, as opposed to the statute's applicability to income tax scenarios.

This court also rejects the Commissioner’s mistaken reliance on a regulation, N.J.A.C. 12:16-11.2, that concerns the obligation of single-member LLCs as employers to make UCL contributions for their own workers, and which does not resolve whether the LLC’s member is another company’s employee.

During a one-month period, between December 10, 2011, and January 11, 2012, five Jewish houses of worship were vandalized, fire-bombed, or attempted to be fire-bombed. Following separate trials, co-defendants Anthony Graziano and Aakash Dalal were convicted of multiple crimes related to those acts, including first-degree terrorism, N.J.S.A. 2C:38-2(a); first-degree aggravated arson, N.J.S.A. 2C:17-1(a)(2) and N.J.S.A. 2C:2-6; first-degree conspiracy to commit arson, N.J.S.A. 2C:17-1 and N.J.S.A. 2C:5-2; and first-degree bias intimidation, N.J.S.A. 2C:16-1(a)(1) and N.J.S.A. 2C:2-6.

Defendants separately appeal, challenging the constitutionality of the New Jersey Anti-Terrorism Act (Act), N.J.S.A. 2C:38-1 to -5. In this consolidated opinion the court addresses a question of first impression: whether the Act is unconstitutionally vague. The court holds it is not. Accordingly, we affirm defendants' convictions. The court also addresses an Eighth Amendment challenge to the sentence imposed under the Act and concludes that it is not cruel and unusual.

In this appeal, the court addresses two post-judgment orders in this palimony case between plaintiff Lisa Greebel and defendant Michael Lensak. The parties never married, but shared a long-term, romantic relationship from approximately 2000 to 2013. During this time, the parties purchased a home, cohabitated, and raised their daughter, born in 2001.

In 2005, plaintiff obtained legal advice from attorney Vincent Celli about her right to financial support from defendant if the parties ever ended their relationship without marrying. Using a different attorney, plaintiff filed a palimony suit in 2014. The case settled in 2018. One year later, Mr. Celli filed a motion for defendant to vacate the final judgment pursuant to Rule 4:50-1, re-open discovery, and set aside the parties' settlement agreement. Plaintiff filed a cross-motion to disqualify Mr. Celli and his firm from representing defendant, alleging the 2005 consultation created a disqualifying conflict.

The court affirms the disqualification of the Celli firm and the dismissal without prejudice of defendant's motion to vacate the final judgment; however, we reverse the provision sealing and barring further use of the motion pleadings.

In this non-dissolution matter, W.M., a putative psychological parent, appeals from two orders directing her to return a teenage minor to the physical custody of his biological mother, D.G. We conclude the trial court did not fully examine plaintiff’s claim she was a psychological parent, and applied the wrong factors for determining whether such parentage existed. Also, the court should have appointed counsel for the child, then seventeen years old, and converted the otherwise summary matter to the complex track. Therefore, we reverse.

In 2017, with his mother's consent, the minor started living with W.M. However, in late 2019, D.G. demanded that her son return home. Based on limited testimony elicited during summary proceedings, the trial court directed the teenager, then almost seventeen years old, to return home over his objection. He stayed at his mother's home one night but refused to remain there. W.M. filed an emergent application, seeking to be designated as the minor's psychological parent, asking that he be returned to her custody, and that the minor's volunteer attorney be permitted to participate in the proceedings. The trial court denied W.M.'s application without a plenary hearing, denied W.M.’s request for the teenager’s attorney to participate in the proceedings, and did not reach the paramount issue of the minor’s best interests.

After staying the trial court’s orders pending appeal and granting the minor’s attorney the right to appear on his behalf, the appellate court reversed. Although the teenager will be eighteen soon, the court also outlined appropriate factors for trial courts to consider when handling a complex FD custody matter. The court concludes the trial court did not fully examine plaintiff’s claim she was a psychological parent, and applied the wrong factors for determining whether such parentage existed. Also, the court should have appointed counsel for the child, then seventeen years old, and converted the otherwise summary matter to the complex track.

In this motor vehicle negligence case, defendant Roland Williams, a driver for defendant ABF Freight System, Inc., rear-ended plaintiff Ahmed Hassan, a driver for FedEx. A defense expert opined that Hassan cut in front of Williams at a slow speed. The jury found both drivers negligent, but Hassan slightly more so, and the court entered a no cause judgment.

On appeal, the court holds that the trial judge erroneously excluded statements by ABF officials that Williams could have prevented the accident, he drove recklessly, and he violated ABF safety protocols. These were all statements of a party opponent. N.J.R.E. 803(b). The judge's reasoning that the statements should be excluded because they went to the "ultimate issue" was at odds with N.J.R.E. 704. The judge correctly excluded evidence that ABF discharged Williams, but he did so for the wrong reason; it was inadmissible because it was a subsequent remedial measure under N.J.R.E. 407. However, the investigatory finding that led to the discharge decision was not a subsequent remedial measure. Also, the probative value of the ABF officials' statements was not substantially outweighed by the risk of undue prejudice, confusion of the issues, or misleading the jury. Given the closeness of the jury's comparative negligence findings, the trial court's mistaken exclusion of the statements warrants a new trial.

Gannett Satellite Information Network, LLC, which publishes the Asbury Park Press, brought an action to compel the Township of Neptune to disclose the Internal Affairs (IA) file of Philip Seidle, who had been a Sergeant in the Township's Police Department. In June 2015, Seidle shot and killed his ex-wife using his service revolver, while off-duty.

The trial court determined that Gannett was not entitled to access to the records under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, but found, after consideration of the relevant factors under Loigman v. Kimmelman, 102 N.J. 98 (1986), that Gannett was entitled to access to the records under the common law. The trial court also awarded Gannett attorney's fees for the successful pursuit of its claim under the common law. The trial court stayed its judgment pending appeal.

The Township appealed, and Gannett cross appealed, from the trial court's judgment. While the appeal and cross appeal were pending, the Attorney General (AG) ordered public disclosure of Seidle's IA file pursuant to the AG's Internal Affairs Policy and Procedures (IAPP).

We held that the trial court correctly decided that Gannett was not entitled to access to the records under OPRA, and Gannett was entitled to access under the common law. We also held that although attorney's fees can be awarded to a plaintiff that prevails on a claim under the common law right of access, an award of attorney's fees to Gannett was not warranted under the circumstances.

Defendant sought relief from a final default judgment of foreclosure of a tax sale certificate, so it could redeem its property. In denying relief, the trial court cited the tax sale certificate's validity, and defendant's failure to ensure its taxes were paid. But, under the Tax Sale Law, an owner need not challenge the tax sale certificate, nor excuse its own past non-payment, before redeeming its property. Defendant presented compelling reasons for its failure to answer the foreclosure complaint; defendant promptly moved to vacate the default judgment; and it was prepared to redeem the property. Based on those exceptional circumstances, the trial court should have exercised its broad equitable power under Rule 4:50-1(f) and granted defendant relief from the judgment. Therefore, the appellate court reversed the trial court's order.

In this construction site accident case, the court addresses an unresolved question of New Jersey law: When is an Affidavit of Merit ("AOM") under N.J.S.A. 2A:53A-27, supporting claims against a licensed professional, due in situations where a plaintiff’s original complaint is later amended and additional answers or other pleadings are filed?

Plaintiffs served AOMs (one from an engineer and another from an architect) more than 120 days after the defendant engineering firm filed its answer to the original complaint, but before that firm answered an amended complaint naming another defendant.

Relying in part on several federal decisions interpreting New Jersey law, the motion judge ruled the deadline for an AOM "does not come into play until the pleadings are [all] settled." Based on that reasoning, the judge deemed timely the two AOMs tendered by plaintiffs more than a year after the engineering firm had filed its original answer and first amended answer.

Declining to adopt the federal approach, this court holds the AOM statute's text and legislative purposes require the affidavit to be served within 60 days (extendable for good cause to 120 days) from the date when the licensed professional files its answer, regardless of whether the pleadings are subsequently amended to name other defendants or assert additional claims. That deadline is subject, however, to the long established AOM exceptions for (1) substantial compliance or (2) extraordinary circumstances.

This appeal raises novel questions concerning the scope of the duty owed to an adult who is not old enough to drink legally but who nonetheless drinks alcohol to excess and injures himself in a motor-vehicle accident. Plaintiff, when he was a twenty-year-old college student, attended a social gathering in a suite in a university's residential hall. He had planned to spend the night in the suite and fell asleep after becoming visibly intoxicated. He later awoke, left the suite, and was injured when a car he was driving went off the road. No one saw plaintiff leave the suite

Plaintiff and his parents appeal from a series of orders that granted summary judgment to the University, four student residential assistants (RAs), four student suitemates (the Suitemates), and three other students who attended the gathering as guests. Plaintiff contends that the University and the students had a duty to take action that would have prevented him from driving while drunk. The court holds that certain defendants had no duty, while the duty of other defendants, and a related causation issue, present questions of fact for a jury to resolve.

The three student guests had no duty to monitor the actions of plaintiff. Any duty of the Suitemates ended when plaintiff fell asleep with the plan to spend the night in the suite. The University and its student RAs are protected by the Charitable Immunity Act (CI Act), N.J.S.A. 2A:53A-7 to -11, which shields them from claims based on simple negligence. There are disputed issues of material fact concerning whether the RAs were grossly negligent or acted with willful or wanton indifference in failing to enforce the University's policies prohibiting underage drinking. There is also a related disputed issue of material fact concerning whether any breach by the RAs caused plaintiff's injuries. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings.

In 2018, after the New Jersey Legislature passed the Global Warming Response Act, N.J.S.A. 26:2C-37 to -68, having declared that it was in the State's interest to reduce greenhouse gas emissions, the Legislature enacted a Zero Emission Certificate (ZEC) program for eligible nuclear power plants, L. 2018, c. 16, codified at N.J.S.A. 48:3-87.3 to -87.7 (the ZEC Act). The purpose of the ZEC Act is to subsidize nuclear power plants at risk of closure, helping them to remain operational despite competition from other carbon-emitting power sources, to further New Jersey's clean energy goals.