Opinion Summaries

Plaintiff Fritzy Rivera was shot by her estranged husband after leaving a friend's apartment at Cherry Hills Towers.  She alledged defendant Vikco, Inc.'s negligence in failing to provide a safe environment as property manager of Cherry Hills Towers allowed him to enter the apartment complex through an open security gate.  Defendant was not the property manager when the assault occurred, but plaintiff contends the open security gate was a practice established by defendant and continued by the new property management company.

The motion court denied defendant's summary judgment motion to dismiss plaintiff's complaint.  Having granted defendant leave to appeal, we reverse. 

We disagree with the court's reasoning that there was a genuine issue of material fact to be determined by the jury as to whether defendant owed plaintiff a duty to provide a safe environment at Cherry Hill Towers when it was not the apartment complex's property manager at the time of the shooting.  Whether defendant owed plaintiff a duty is a question of law to be determined by the court, not by a jury at trial.  Under the circumstances of this case, we conclude our common law does not support plaintiff's theory that defendant's duty to provide a safe and secure environment at Cherry Hill Towers continued after its management services were discontinued.   Summary judgment is granted to Vikco.

This litigation arises from unreimbursed medical expenses incurred by a twenty-four-year-old who was a named “adult child” dependent on his father’s health insurance policy, pursuant to 42 U.S.C. § 300gg-14(a), of the Patient Protection and Affordable Care Act (ACA). This opinion addresses two questions of first impression under New Jersey law.

First, pursuant to the Statute of Frauds, specifically N.J.S.A. 25:1-15, can a family member’s oral guarantee of payment be enforceable where the promisor has no pecuniary interest? Based on the decades-long thread of pecuniary advantage woven through New Jersey’s leading object exception precedent, the court holds that oral promises supported by familial bonds only – without any pecuniary or economic advantage to the promisor – do not satisfy the leading object exception to the Statute of Frauds.

Second, can a parent, who is the insurance policy holder, be held liable for unreimbursed medical expenses incurred by an emancipated child who is a covered “adult child” dependent pursuant to the ACA? Guided by N.J.S.A. 9:17B-3, the court holds that, in the absence of any signed, written guarantee executed by the parent, the parent of an emancipated adult capable of contracting for a provider’s care cannot be deemed liable for unreimbursed medical expenses, even where the “adult dependent” is covered on the parent’s health insurance policy, pursuant to the ACA.

Plaintiff brought a subrogation claim against defendants to recoup insurance benefits it paid to its insured on account of damage caused by a fire at a construction site.  In an effort to obtain relevant information pertaining to the cause of the fire, the civil action parties served a subpoena duces tecum on the Somerset County Prosecutor's Office (SCPO), a non-party law enforcement agency, and moved to compel production of its criminal investigation file relating to the ongoing prosecution of the individual who was suspected of starting the fire.  The trial judge rejected the SCPO's claim that the criminal investigation materials were privileged and confidential, and ordered it to turn over to the civil action parties:  (1) videos and photographs depicting the events giving rise to the criminal prosecution, (2) the suspect's statement to police, and (3) witness statements, or alternatively, witness contact information. 

The court granted the SCPO's motion for leave to appeal and reversed the disclosure order.  Because the materials sought were subject to a qualified privilege, the court determined that the trial judge failed to properly balance the competing interests at stake.  The court held that the civil action parties' discovery interests were subordinate to the State's paramount interest in preserving the integrity of an ongoing criminal prosecution and the underlying evidential record.  The court acknowledged that the privilege was not absolute but pointed out that the materials were not essential to the resolution of the subrogation claim and the presence of significant monetary damages did not of itself outweigh the SCPO's interests in protecting and maintaining the confidentiality of its criminal investigation materials.  Further, the civil parties failed to meet their burden of demonstrating that at least some of the information could not be obtained from other sources. 

In this contract payment dispute between a general contractor and its subcontractor, the court held as a matter of first impression that a "pay-if-paid" provision in a construction contract is enforceable as a matter of law.  The court adopted the construction industry's definition of "pay-if-paid" provisions as conditions precedent to payment that shift the risk of a project owner's nonpayment from the general contractor to the subcontractor, by virtue of which the subcontractor is paid by the general contractor only if the owner pays the general contractor for that subcontractor's work.  The court held that subject to the parties' implied duty to not frustrate conditions precedent to performance, such provisions are neither unfair, unconscionable, nor against public policy so long as the contract specifies a clear and unambiguous intent to shift the risk of nonpayment.

 
Given the court's holding regarding the enforceability of a "pay-if-paid" provision and determination that the subcontractor expressed a clear and unambiguous intent to be bound by such terms, the court concluded that a counterclaim relying on the "pay-if-paid" provision to bar payment to the subcontractor based on the owner's nonpayment for the subcontractor's work adequately suggested a cause of action for breach of contract to withstand dismissal under Rule 4:6-2(e) for failure to state a claim.  Consequently, the court affirmed the motion judge's order denying the subcontractor's motion to dismiss the counterclaim pursuant to Rule 4:6-2(e).  However, the court reversed the motion judge's order granting summary judgment dismissal of the subcontractor's claims for payment because there was a factual dispute as to whether the owner's nonpayment was precipitated by the general contractor's wrongful conduct.

Our Supreme Court granted leave to defendants Henry Trino, Charlene Trino, Airel Trino, and Kevin Garcia to appeal the denial of their summary judgment motions to dismiss the complaint by plaintiffs Silvana Lansigan Delvalle, as administrator of Raniel Hernandez's estate and individually, and Ralph Hernandez.  These appeals were calendared back-to-back and consolidated to issue a single opinion. 

Plaintiffs' common law claims of negligence and intentional infliction of emotional distress, as well as the claim based on the principal of Portee v. Jaffee, 84 N.J. 88 (1980), arise from the accidental drowning of their son Raniel, while he was swimming, intoxicated, at a pool party hosted by the Trinos. 

 The trial court denied summary judgment to defendants on the ground there were genuine issues of material facts in dispute with respect to their negligence.  As to Garcia, the dispute involved his active role in Raniel's drowning.  Concerning the Trinos, the dispute involved the common law duty owed to an intoxicated Raniel and the implementation of reasonable pool safety protections to prevent his drowning.  The motion court did not address dismissal of plaintiffs' intentional infliction of emotional distress and Portee claims.

We reverse. Garcia should have been granted summary judgment because the undisputed record indicates he had no role in Raniel's decision to enter the pool, nor did he have a duty to rescue Raniel.  Furthermore, there is no indication Garcia failed to exercise good faith when he tried to save Raniel.  The Trinos should have been granted summary judgment because the Social Host Liability Act, N.J.S.A. 2A:15-5.5 to 5.8, does not govern plaintiff's drowning and, under our current state law, they owed Raniel no common law duty to prevent him from swimming while intoxicated.  As for the intentional infliction of emotional distress and Portee claims, they fail as a matter of law.  Defendants' conduct in not knowing or indicating how Raniel drowned did not constitute intentional infliction of emotional distress, and there is no viable Portee claim because plaintiffs did not witness the drowning.

This appeal raises the novel issue of whether it is appropriate for a trial court to consider acquitted conduct to determine a registrant's Megan's Law tier designation. The court held the trial court properly considered acquitted conduct because of the non-punitive, civil nature of a Megan's Law proceeding, the public safety purpose underpinning the statute, and the less demanding standard utilized to make a tier designation. The court determined this situation was distinguishable from imposing an enhanced criminal sentence based on acquitted conduct, which our Supreme Court recently held to be improper. State v. Melvin, 248 N.J. 321, 352 (2021). This is because the trial court's utilization of acquitted conduct was not for the purpose of increasing the registrant's punishment, but for a legitimate public safety purpose consistent with In re Registrant C.A., 146 N.J. 71, 80 (1996). The court remanded, however, for the trial court to conduct a more comprehensive review of the record and to consider portions of the trial transcript and other documents identified by the registrant, which he contends rebuts the acquitted conduct relied upon by the court to increase his tier classification.

A plain reading of the relevant statutes dictates that special disciplinary arbitration is not limited to municipal officers, so arbitration is available to public university police officers like Officer DiGuglielmo. Further, pursuant to N.J.S.A. 40A:14-210, an officer suspended with pay prior to termination is eligible to engage in special disciplinary arbitration. The Court therefore reinstates PERC’s decision.

The Court agrees with the Appellate Division that the trial court did not abuse its discretion in deciding to hear the defendant’s waiver motion before considering his suppression motion. The Court declines, however, to adopt a preference that the Family Part hear suppression motions before waiver motions, holding instead that it is within the discretion of the Family Part to determine its schedule of proceedings and manage its calendar. The Court sets forth factors that Family Part judges should take into consideration in exercising their discretion as to the order in which to hear waiver and suppression motions.

The court granted leave to appeal to consider the enforceability of a forum selection clause contained in commercial loan agreements executed by sophisticated parties.  The court concluded such provisions are enforceable despite allegations that the contracts in which they are embedded are unenforceable due to fraud, unless the alleged fraud improperly induced assent to the forum selection clause specifically.  In doing so, the court relied upon the United States Supreme Court ruling in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967), and the New Jersey Supreme Court ruling in Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 216-17 (2019), both of which applied this principle to enforce arbitration provisions.  The court also acknowledged authority from other jurisdictions that have applied this rule to uphold forum selection clauses and explained that its holding aligns with the majority approach. 

In addition, distinguishing McNeil v. Zoref, 297 N.J. Super. 213, 219 (App. Div. 1997), the court held the entire controversy doctrine does not vitiate an otherwise-enforceable forum selection clause when the enforcing party is severable from the litigation.  Following Wilfred v. MacDonald Inc. v. Cushman Inc., 256 N.J. Super. 58, 65 (App. Div. 1992), the court also concluded no appreciable inconvenience would result from enforcing the forum selection clause, thereby requiring the parties to litigate their claims in Utah.  

Finally, the court held that the seven-factor analysis detailed by the New Jersey Supreme Court in Cole v. Jersey City Med. Ctr., 215 N.J. 265, 280-81 (2013) to determine whether a party waived the right to enforce an arbitration provision applies equally to the question of whether a party waived the right to enforce a forum selection clause.  The court further explained that the analysis required under Cole is necessarily fact-intensive and therefore declined to exercise original jurisdiction under Rule 2:10-5. 

After reviewing the relevant statutes and authorities that must be considered in balancing the competing interests and rights of a sexual assault victim and the person accused of the sexual offense, the Court sets forth a framework of procedures and considerations to apply going forward when a prosecutor seeks to withhold from discovery a sexual assault victim’s address. Because neither the ruling of the trial court nor that of the Appellate Division sufficiently addresses the competing interests explored in the Court’s opinion, the Court remands the matter for a more fulsome balancing of the competing interests.

The Tax Sale Law bears no hostility toward investors who otherwise meet the requirements of N.J.S.A. 54:5-89.1 when they prematurely attempt to redeem. Although the investor must always intervene before being allowed to redeem, a misstep like that which occurred here puts the tax sale certificate holder in no worse position than it would have possessed had the error not occurred. Here, because the LLC provided Calderon with more than nominal consideration and because the parties had the benefit of the chancery judge’s full consideration of their competing legal and equitable arguments, the LLC’s premature attempt to redeem should not vitiate the right to redeem it fairly acquired.

It was error to admit defendant’s statements after detectives failed to honor his invocation of the right to counsel, and that error was not harmless in light of the circumstantial nature of the evidence against defendant and his statements’ capacity to undermine his credibility before the jury.

The Legislature has declared that no business entity may be awarded a public contract unless, prior to or along with its bid, the business entity submits "a statement setting forth the names and addresses" of the individuals owning more than ten percent of the entity.  N.J.S.A. 52:25-24.2 (emphasis added).  In this appeal, the court held that the Legislature did not intend the word "addresses" to be synonymous with "home addresses" and that the statute's requirement is met when the bidder provides its owners' mailing addresses.

The court granted leave to appeal to consider the denial of cross-motions for summary judgment – based on stipulated facts – about whether plaintiff Paul M. Carelli was entitled to enforcement of a contractual provision, upon the early termination of his third four-year term as the Borough of Caldwell's administrator, that purported to allow him a severance package "equal to one month salary for each year of service." The court concluded that this contractual provision was unenforceable because, in allowing a severance package of more than eight months' salary, it was inconsistent with N.J.S.A. 40A:9-138, which imposes both a ceiling and a floor on a municipal administrator's severance to "any unpaid balance of his [or her] salary and his [or her] salary for the next 3 calendar months." For that reason, the court reversed and remanded for entry of summary judgment dismissing Carelli's complaint.

In this appeal the court addresses a question of first impression:  is a licensed practical nurse a "licensed person" as defined in and covered by the Affidavit of Merit (AOM) statute, N.J.S.A. 2A:53A-26 to -29.  Defendant Susan Junod, a licensed practical nurse, appeals from orders declaring that plaintiff did not need to file an AOM to pursue professional-negligence claims against her and denying her motion to dismiss the complaint for failure to provide an AOM.  The court affirms both orders because the AOM statute applies only to certain specified "licensed person[s]" and a licensed practical nurse is not included in the statute.

Tax Court; Options Imagined v. Parsippany-Troy Hills Township; Docket Nos. 010456-2020, 09577-2021 and 007910-2022; opinion by Bianco, J.T.C., decided October 31, 2022. For plaintiff – Robert B. McBriar (Schneck, Price, Smith, & King, LLP., attorneys); For defendant – Richard P. DeAngelis (Connell Foley., attorneys).

The court held that Options Imagined, a New Jersey nonprofit and Federal § 502 (c) (3) corporation, satisfied the requirements for property tax exemption under N.J.S.A. 54:4-3.6, finding that it was actually used in furtherance of the nonprofit’s charitable purpose, to provide care to mentally disabled adults, where its sole and current resident is the son of the President of the corporation. The court found that Options satisfied the Paper Mill use test because it is opened to the public and serves a public purpose.

Ameribuilt Contractors appeals the workers' compensation judge's February 1, 2022 order rejecting a proposed settlement and disqualifying its assigned insurance counsel, Brown & Connery, LLP (B&C), on the basis of a perceived conflict between Ameribuilt's workers' compensation carrier, Travelers Property Casualty Insurance Co. (Travelers), and Travelers' ostensible insured, respondent Robert Alam.  The court concludes that the judge erred in finding that a conflict existed and, thus, there was no basis for the disqualification.  Accordingly, the court is constrained to reverse.

A trial judge may order the removal of counsel where there is a violation of the Rules of Professional Conduct.  Here, the judge disqualified B&C based on a violation of R.P.C. 1.7, which states, in pertinent part, that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest."  In evaluating whether a conflict exists, however, we are mindful that "[a] corporation is regarded as an entity separate and distinct from its shareholders."  Tully v. Mirz, 457 N.J. Super. 114, 123 (App. Div. 2018) (quoting Strasenburgh v. Straubmuller, 146 N.J. 527, 549 (1996)).  Additionally, "a corporation is regarded in law as an entity distinct from its individual officers, directors, and agents."  Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 761 (1989) (citation omitted).

Guided by these well-established legal principles, the court concludes that the trial judge erred in finding a conflict between Travelers and Alam.  In reaching that conclusion, we hold that the judge failed to distinguish Ameribuilt, the corporation, from Alam, an owner and shareholder.

Defendant appealed from a judgment of guardianship after trial, terminating her parental rights to four of her children.  The panel addressed whether the trial court improperly considered evidence of the children's relationship with their foster parents in violation of prong two of the best-interests test.  That prong was recently amended by the Legislature, which removed the sentence:  "[s]uch harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child."  N.J.S.A. 30:4C-15.1(a)(2) (amended 2021).  The Legislature did not alter the other components of the best-interests standard.

The panel rejected the argument that, by deleting the above language from prong two, the Legislature intended to bar all evidence concerning a child's relationship with resource caregivers, even in the context of the other prongs of the best-interest standard.  Prong two as amended emphasizes consideration of whether a parent is able to overcome harm to the child as well as whether the parent can cease causing future harm.  The amendment clearly isolates those specific inquiries from consideration of the bonds a child has forged with resource caregivers.  Nevertheless, the amendments to prong two do not mean that such a bond may never be considered within any part of the best-interests analysis.  Neither the legislative history nor the plain text necessitates such a sweeping conclusion. 

The panel construed the deletion from prong two to give greater effect to the alteration, in a manner that remains coherent with prong four.  The amended statute requires a court to make a finding under prong two that does not include considerations of caregiver bonding, and then weigh that finding against all the evidence that may be considered under prong four—including the harm that would result from disrupting whatever bonds the child has formed. 

The coach’s acts and omissions alleged here are governed by a simple negligence standard rather than the heightened standard of recklessness the Court applied when one participant injures another during a recreational activity.

Petitioner, James Meyers, a retired New Jersey State Police captain, appeals from a final decision of the State Health Benefits Commission (SHBC) which discontinued his fully paid health care insurance coverage under the State Health Benefits Plan, and imposed a premium deduction against his monthly retirement check. Petitioner administratively appealed the deduction, contending the SHBC was estopped from terminating his free health care insurance coverage.

In an initial decision, an administrative law judge (ALJ) found that the SHBC was estopped from deducting monthly health insurance premiums from petitioner's retirement payments. In a final decision, the SHBC rejected the ALJ's findings and concluded that it had the right to deduct a premium contribution from petitioner's monthly retirement payments to pay for his family's health insurance coverage. Petitioner appealed the final decision, arguing that the SHBC was equitably estopped from discontinuing no-cost health insurance coverage.

The court held that petitioner was not eligible to receive no-cost health care coverage in retirement under N.J.S.A. 52:14-17.28d(b)(3), because he did not have the requisite creditable service time as of the effective date of the statute. The court also held that principles of equitable estoppel could not be applied on these facts, where petitioner was statutorily ineligible for such coverage.