Opinion Summaries

          Appellant Karen McKnight appeals from the Board of Review's (the "Board") August 26, 2022 final agency decision, which held her liable to return an overpayment of $6,277 for unemployment benefits she was allegedly ineligible to receive for the weeks ending June 30, 2018 through May 4, 2019, pursuant to N.J.S.A. 43:21-16(d).  The central issue on appeal is whether a claimant, who is otherwise separated from full-time employment, may include wages received from a part-time position, which they continue to maintain, in the calculation of their average weekly wage for purposes of unemployment benefits.  The court concluded that the exclusion of the wages contravenes the legislative purpose of the unemployment benefits statute and is arbitrary as legally unsupported.  Therefore, the court reversed and remanded for a recalculation of benefits.

         In this appeal from the Law Division's grant of summary judgment to defendants, the court was asked to consider, for the first time, whether a motor vehicle subject to a recall notice alone is sufficient to establish a claim pursuant to the New Jersey Lemon Law statute, N.J.S.A. 56:12-29 to -49.  Defendant issued a recall notice that encompassed plaintiff's vehicle.  Plaintiff subsequently brought the vehicle to the dealer to have the recall repair performed.  Primarily due to disruptions resulting from the COVID-19 pandemic, defendant's ability to complete the recall was delayed.

         A Law Division judge granted defendant summary judgment.  The court affirmed and held the existence of a recall notice alone is not sufficient to establish the "nonconformity" element of a Lemon Law claim.  In addition, because plaintiff primarily used the vehicle for business purposes, it is excluded from the Lemon Law's coverage.

Based on the language and structure of the relevant statutes, the State’s request for information from users’ accounts invokes heightened privacy protections. The nearly contemporaneous acquisition of electronic communications here is the functional equivalent of wiretap surveillance and is therefore entitled to greater constitutional protection. New Jersey’s wiretap act applies in this case to safeguard individual privacy rights under the relevant statutes and the State Constitution.

The court considers whether the Superior Court has jurisdiction to adjudicate claims for monetary damages, filed years after the statutory deadline for filing a tax appeal, based on allegations that municipal officials committed fraud and other torts by assessing real property in a manner inconsistent with law and at an amount above its true market value.  The court concludes that the Superior Court lacks jurisdiction to hear such claims because they are substantively equivalent to a tax appeal properly venued in the Tax Court or a county board of taxation, and the statutory deadlines for challenging local property tax assessments may not be circumvented by a late-filed complaint seeking damages for alleged torts arising from the tax assessment process.  In light of these conclusions, the court affirms the trial court order dismissing the complaint in this matter with prejudice for failure to state a claim upon which relief can be granted.

Expanding the search to the engine compartment and trunk went beyond the scope of the automobile exception. Although the trooper smelled marijuana in the passenger compartment of the car, his initial search yielded no results and provided no justification “to extend the zone of the . . . search further than the persons of the occupants or the interior of the car.” State v. Patino, 83 N.J. 1, 14-15 (1980). As a result, the seized evidence should be suppressed.

Defendant voluntarily went to the police station to give a witness statement. At the police station, defendant was interviewed twice. During his first interview, defendant was not in custody and thus not yet owed Miranda warnings. The factors set forth in O’Neill therefore do not need to be considered to assess the admissibility of the second interview. And before police interviewed defendant the second time, they properly administered Miranda warnings. With his rights in mind, defendant executed a knowing, intelligent, and voluntary waiver. During his second interview, defendant confessed. Neither the Fifth Amendment nor state common law calls for suppression of defendant’s statements.

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

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

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

The Court affirms as modified the Appellate Division’s judgment. The Court declines to adopt an exception to the American Rule for common law right of access claims to public records. Those claims impose significant burdens on municipal clerks and other records custodians; they require a careful balancing of competing interests and the application of an array of factors that can challenge even a seasoned judge. Imposing fee-shifting in this category of cases would venture far beyond the narrow exceptions to the American Rule that New Jersey courts have adopted to date. Accordingly, Gannett is not entitled to an award of attorneys’ fees in this appeal.

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

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

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

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

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

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

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

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

The Court affirms the Appellate Division’s core holding that trial courts determine on a case-by-case basis what conditions, if any, to place on a DME -- including who may attend and whether it may be recorded -- with no absolute prohibitions or entitlements. The Court further affirms that video recording, in addition to audio recording, should be included in the range of options; that the parties shall enter into a protective order when a defense expert is concerned about the disclosure of proprietary information; that when third-party observation is permitted, the trial court shall impose reasonable conditions to prevent any disruption of or interference with the exam; and that, if a foreign or sign language interpreter is needed, a neutral interpreter shall be selected by the parties or, failing agreement, by the court.

Parsells did not knowingly waive her tenured right to a full-time teaching position, and the Court therefore affirms the Appellate Division’s decision upholding the Commissioner’s award of “full back pay, benefits, and emoluments, less mitigation.” But the Court rejects the extension of Bridgewater-Raritan to impose a duty on school boards to notify, in advance, full-time teachers who consider voluntarily transferring to part-time teaching positions that they may not have a right to return to their full-time position.

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

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

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

Judges are encouraged, when practical, to respond “yes” or “no” to unambiguous and specific questions posed by juries during deliberations rather than solely re-read sections of the final jury charge. In general, when a specific request for clarification clearly calls for and is capable of a “yes” or “no” answer, like here, then judges should respond accordingly. Here, the answer to the jury’s question is indisputably “yes,” one can be a “supervisor” but not hold a “high-level” position in a drug trafficking network. Instead of responding “yes” to the question, however, the judge re-read the entire model kingpin charge; opined that those elements, three and four, sounded similar; and may have implicitly suggested that being a “supervisor” is sufficient to establish that a defendant held a “high-level” position within such an organization. The response to the question was an error clearly capable of producing an unjust result.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Application of the Galvao multi-factor test -- which can involve matters of disputed fact and witness credibility -- is presumptively for a jury to determine. The court itself should not resolve the borrowed-employee issue unless the evidence concerning the factors is so one-sided that it warrants judgment in a moving party’s favor as a matter of law. Because the evidence in this case concerning the Galvao factors was not sufficiently one-sided, the trial court incorrectly granted defendant’s Rule 4:40-1 motion and deemed the worker who caused the accident a borrowed employee of plaintiff’s own employer.

ADDED ASSESSMENT APPEALS (N.J.S.A. 54:4-63.11) – CASE TRACK REASSIGNMENT (R. 8:6-7) 

Tax Court: Jantzen, Giuseppin Nina & Matthew D. v. Green Township; Docket Nos. 008224-2022 & 008229-2022, opinion by Bianco, J.T.C., decided May 30, 2023.  For plaintiff – Kevin S. Englert (The Englert Law Firm, L.L.C.; attorney); for defendant – Robert B. McBriar (Schenck, Price, Smith & King, L.L.P.; attorney).

Plaintiff Taxpayers moved to change the small claims track designation assigned by the Tax Court Management Office for both above-referenced docket numbers, to the standard track to secure more comprehensive discovery.  Defendant Township cross-moved for summary judgment to dismiss the added assessment appeal under docket number 008224-2022 as untimely pursuant to N.J.S.A. 54:4-63.11. The court denied Defendant’s cross-motion to dismiss the added assessment appeal finding that the Township did not establish that the Tax Collector mailed notice of the 2021 added assessment to the Taxpayers, nor did the Taxpayers have constructive notice of the added assessment, and, Taxpayers were further denied a hearing before the Sussex County Board of Taxation. The court granted Plaintiffs’ motion the change the track designation in both matters finding that the change is necessary for Plaintiffs to pursue their claims against Defendant. 

(26 Pages)
 

An MDT query revealing that a vehicle’s owner has a suspended New Jersey driver’s license provides constitutionally valid reasonable suspicion authorizing the officer to stop the vehicle -- unless the officer pursuing the vehicle has a sufficient objective basis to believe that the driver does not resemble the owner. If, upon stopping the vehicle, it becomes reasonably apparent to the officer that the driver does not look like the owner whose license is suspended, the officer must cease the vehicle’s detention and communicate that the motorist is free to drive away without further delay. Based on the specific facts presented here, the initial stop of the vehicle was valid because it was based on reasonable suspicion. However, the detention of defendants and the borrowed car was unconstitutionally prolonged after the officer recognized the driver was not the car’s owner. The officer’s admittedly uncertain ability to tell if he smelled marijuana was inadequate evidence of “plain smell” to justify a continuation of the stop and a search of the vehicle.

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

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

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

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

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

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

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