Opinion Summaries

Tax Court: SF III Kinderkamack, LLC v Borough of Oradell; Docket Nos. 005860-2021, opinion by Orsen, J.T.C., decided October 21, 2022. For proposed Intervenor – Paul Tannenbaum (Zipp & Tannenbaum, LLC, attorneys); for plaintiff – Michael Ash (Carlin, Ward, Ash & Heiart, LLC, attorneys); and for defendant – Alan Spiniello (Alan Spiniello Law Offices, attorneys).

Held: Intervenor, Dabby Bergen Medi Pro, LLC, Sianes Bergen Medi Pro, LLC, YB 690 Kinder, LLC, and Yazam Investments, LLC collectively, sought to be joined as a party to the 2021 property tax appeal filed by plaintiff, SF III Kinderkamack, LLC. Intervenor asserted that the court rules pertaining to the transfer of interest, intervention and joinder were applicable; and standing existed to participate in the case as the new owner of the property. Defendant, Borough of Oradell, opposed the motion and maintained that Intervenor did not have standing because it was not the property owner as of the property tax appeal filing deadline, its claim was not within the statute of limitations and the requirements of the applicable court rules were not met. The court determined that Intervenor met the standards to join due to the transfer of interest of the property per the court rules. Moreover, the court found that Intervenor had standing in its fact-sensitive analysis through multiple factors including the review of its financial interest in the property and responsibility to pay taxes. Intervenor was also not barred by the statute of limitations as no new relief was sought. Accordingly, the court granted Intervenor’s motion to join the case as a party.

          N.J.A.C. 11:3-29.4(e) limits an insurer's liability for a medical expense benefit not set forth in the fee schedules established by the New Jersey Department of Banking and Insurance to a reasonable amount considering the fee schedule amount for similar services.  The regulation further states when a current procedural terminology (CPT) code for the service performed has been changed since the fee schedule was last amended, the provider shall bill the actual and correct code found in the most recent version of the CPT book, and the insurer shall pay the amount.  The process of matching the current code with the most recent version of the fee schedule is referred to as "cross-walking."  Where cross-walking is not possible because the fee schedule does not contain a reference to similar services, the insurer's liability for the medical expenses is limited to the usual, customary, and reasonable (UCR) fee. 

Plaintiff treated a patient using electromyography and nerve conduction velocity (NCV) tests and received approval from defendant under CPT code 95913, which is defined as thirteen or more nerve studies.  This code replaced CPT codes 95903, 95904, and 95934.  Plaintiff conducted twenty separate NCV tests, billed defendant using CPT code 95913, but cross-walked the types of tests back to the prior codes, 95903, 95904, and 95934.  Defendant reimbursed plaintiff using the more expensive prior CPT code, 95903, and capped the reimbursement at thirteen tests. 

The parties arbitrated their dispute and a dispute resolution professional (DRP) ruled in favor of defendant.  A majority of a DRP appellate panel affirmed.  The trial court also affirmed the reimbursement, applying the UCR methodology.

On appeal, the court exercised its supervisory authority to resolve a split in the interpretation of CPT code 95913 among DRPs and conducted a de novo review of the parties' arguments interpreting N.J.A.C. 11:3-29.4(e).  The court reversed the trial court's application of the UCR methodology, holding that under N.J.A.C. 11:3-29.4(e), the appropriate methodology, absent an updated fee schedule, for reimbursements sought under CPT code 95913, was to cross-walk the tests performed back to CPT codes 95903, 95904, and 95934.

This appeal stems from a final agency decision by the Division of Medical Assistance and Health Services (DMAHS) denying C.L.'s request for Medicaid benefits due to excess resources.  DMAHS determined an annuity C.L. purchased from the Croatian Fraternal Union of America (CFUA), which she understood to be irrevocable, was revocable and counted as a resource, thereby disqualifying her from Medicaid benefits.  DMAHS further determined the federal injunction against it regarding the identical annuity contract for a different annuitant did not apply in this case because C.L. purchased the annuity prior to the injunction being entered. 

The court reversed and determined the annuity contract language was unambiguous and the annuity was irrevocable, notwithstanding language in the contract, which allowed CFUA to amend the contract.  The court held the plain, ordinary meaning of the contract language expressly stated it was irrevocable, and DMAHS's interpretation would render those provisions meaningless contrary to established contract law and misleading pursuant to New Jersey Department of Banking and Insurance regulations. 

Plaintiff L.R. is the mother of a disabled student attending the Camden City Public Schools.  She served defendant Cherry Hill Board of Education and its record custodian with an Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -17, request for all settlement agreements from all lawsuits in which defendant was sued by a student and/or their parent.  The request asked defendant to redact the parent and student names leaving only their initials.  Defendant produced the documents sought but redacted all personally identifiable information (PII), including initials.

Plaintiff appealed.  Following the decisions in L.R. v. Camden City Public School District (L.R. I), 452 N.J. Super. 56 (App. Div. 2017), and L.R. v. Camden City Public School District (L.R. II), 238 N.J. 547 (2019), the trial judge dismissed the complaint finding plaintiff was not entitled to the initials because she:  (1) Was not authorized to obtain the information by means of a court order; and (2) lacked a common law right of access to student records because defendant had a legitimate claim of confidentiality under the Family Educational Records and Privacy Act, 20 U.S.C. 1232g, and the New Jersey Pupil Records Act, N.J.S.A. 18A:36-19. 

Following this appeal, the Department of Education promulgated new regulations governing public access to student records under OPRA in response to L.R. II.  The regulations define PII and student records that may be released pursuant to a court order provided the records do not contain any PII.  N.J.A.C. 6A:32-2.1.  They also state student "records removed of all [PII]" may be released without consent.  N.J.A.C. 6A:32-7.5(g)(1). 

On appeal, the court affirmed, holding the new regulations were not retroactive, and even if they were defendant's redaction of the initials was consistent with the regulations and the trial judge's ruling that plaintiff was not entitled to unredacted records.  The court held plaintiff's reliance on Keddie v. Rutgers, 148 N.J. 36, 40 (1997), establishing the public's common law right to records, and C.E. v. Elizabeth Public School District, 472 N.J. Super. 253 (App. Div. 2022), establishing the right to settlements entered before the Office of Administrative Law under OPRA, were inapposite because those cases involved the failure to produce documents not whether a defendant should have redacted the PII altogether.

Tax Court: Bloomingdale’s, Inc. and Bloomingdale’s c/o Federated Department Stores, Inc. v. Hackensack City; Docket Nos. 006396-2016, 007619-2016, 004282-2017, 006959-2018, 003279-2019, 004117-2020, opinion by Novin, J.T.C., decided August 8, 2022; publication date September 28, 2022. For plaintiff – Gregory S. Schaffer and Adam R. Jones (Garippa, Lotz & Giannuario, P.C., attorneys); for defendant – Kenneth A. Porro (Chasan Lamparello Mallon & Cappuzzo, P.C., attorneys).

The court concluded that the subject property’s tax assessments should be afforded a presumption of validity because defendant’s tax assessor relied on reasonable available market data and methods in fulfilling his constitutional and statutory obligations. The court found that defendant’s ineligibility to conduct an annual reassessment program, under N.J.A.C. 18:12A-1.14(i), was not singularly dispositive on the issue of whether the local property tax assessments were entitled to a presumption of validity. Rather, the court observed that the inquiry must focus on whether the valuation and local property tax assessments were reasonably related to sound assessment practices, based on reasonable data and information, a sensitivity to changing market conditions, and consideration of physical factors uniquely applicable to the property. The court found that plaintiff offered no evidence that the market data, analysis, and/or methodology relied upon by the defendant’s tax assessor were flawed or arbitrary. Accordingly, the court rejected plaintiff’s arguments that no presumption of validity should attach to the subject property’s tax assessments.

This case presents a question of first impression regarding the scope of the Transportation Network Company Safety and Regulatory Act (TNCSRA or Act), N.J.S.A. 39:5H-1 to -27. The TNCSRA, which was enacted in 2017, comprehensively regulates companies and drivers that use a digital network such as a mobile phone application (app) to connect a "rider" to a "prearranged ride." Plaintiff was injured in a motor vehicle accident while he was operating his motorcycle as an Uber Eats delivery driver. The novel legal issue raised in this appeal is whether the Act—which requires "transportation network companies" to provide at least $1.5 million in underinsured motorist coverage—protects drivers while they are delivering food and not just when they are in the process of transporting passengers. The court concludes that the Act by its literal terms applies only to the prearranged transport of riders and not to the prearranged delivery of food.

In determining the scope of the statute's intended reach, that is, its "overall meaning," the court pays special attention to the definition section, noting that the very existence—or non-existence—of specific definitions reveals the basic concepts and principles the Legislature deemed to be especially important, warranting precise and explicit formulations. The Legislature's decision to define certain terms but not others, the court reasons, can provide insight into the overall meaning of the statutory scheme and the scope of its reach. In this instance, nothing in the definition section—or any other section of the Act for that matter—refers to the delivery of food. The absence of any reference to food delivery in the definition section stands in stark contrast to the interrelated definitions that refer explicitly and repeatedly to "rides" and "riders," which clearly denote the transport of human passengers.

Because the primary question posed in this case is easily resolved under a plain-text analysis, the court acknowledges that it need not consider extrinsic sources to determine legislative intent. The court nonetheless adds in the interest of completeness that nothing in the legislative history supports plaintiff's contention that the Act applies to food delivery services. The court further notes that regulations promulgated by the Motor Vehicle Commission support the court's interpretation as to the scope of the Act.

The court acknowledges that by enacting the TNCSRA, the Legislature recognized the commercial and societal value of new technologies that use mobile digital networks to connect customers with service providers. But while the use of an app is necessary to trigger the Act's provisions, that alone is not sufficient. The court concludes that to fall within the Act's jurisdiction—and thus to invoke the protections of its minimum insurance coverage provisions—the app-based connection must be used to arrange a ride for a human passenger.

The court further acknowledges that while the TNCSRA is of comparatively recent vintage, it was enacted before the COVID-19 pandemic, during which the imperative for social distancing simultaneously increased the demand for home delivery of food and reduced the demand for ridesharing. The court emphasizes that the evolution of the supply and demand marketplace since the TNCSRA was enacted does not change its plain text. While there may be circumstances, not present here, where it is necessary and appropriate to teach an old law to do new tricks, a statute's text does not evolve sua sponte. Reviewing courts, moreover, must afford due deference to the legislative process. Accordingly, the court stresses, it is for the political branches, not the Judiciary, to amend a statute to account for new developments and to fill any "holes" in the statute's scope and reach.

In State v. Kelvin Briggs, defendant moved to suppress internet protocol (IP) address data. In support of his motion, defendant argued that IP address data was akin to cell-site location information (CSLI), which is afforded protection by the United States Supreme Court in Carpenter v. U.S., ___ U.S. ___, 138 S. Ct. 2206 (2018). Further, defendant argued that like CSLI data, IP address data should be considered location data that requires a warrant. This issue is one of first impression in New Jersey.

In its decision, the court distinguished between IP address data and CSLI and held that IP address data should not be afforded the same protections as CSLI. More specifically, the court observed that IP address data does not generate the same privacy concerns enunciated in Carpenter. Accordingly, defendant’s motion to suppress was denied.

The court reverses the trial court's order dismissing defendant's PCR petition as time-barred following guilty pleas to shoplifting and receiving stolen property entered post-Padilla v. Kentucky and remands for an evidentiary hearing. The court finds defendant established excusable neglect as his Texas immigration counsel, who has represented defendant since shortly after he was placed in ICE detention in 2014, certified he failed to advise defendant until September 2019 of the availability of a PCR application in New Jersey, and that there is a reasonable probability if defendant's factual assertions that he pleaded guilty to receiving stolen property, not because he was guilty, but based on incorrect advice about the immigration consequences of risking trial and a jail term, are found to be true, "enforcement of the time bar would result in a fundamental injustice." R.3:22-12(a)(1)(A).

Indicted on charges of first- and second-degree sexual assault, Victor Alvarez, a lawful permanent resident, rejected an offer to plead guilty to fourth-degree criminal sexual contact or third-degree criminal restraint in exchange for a recommended sentence of two years' probation based on likely erroneous immigration advice. He testified at trial that he is innocent of any non-consensual contact with the victim and only prevented her from driving to ensure her safety. The jury convicted him of first -degree aggravated sexual assault, and he was sentenced to a fifteen-year NERA term.

The court affirms the dismissal of his PCR petition based on his trial testimony, finding he cannot, as a matter of law, establish he suffered any prejudice from immigration counsel's or plea counsel's deficient advice about the plea because it was a plea he'd have to perjure himself to accept.

As a matter of law, the evidence presented, even affording plaintiffs all favorable inferences, does not establish that defendants’ acts or omissions were motivated by actual malice or accompanied by wanton and willful disregard for Ruscitto’s health and safety. A reasonable jury could not find by clear and convincing evidence that punitive damages are warranted based on the facts of this case, and partial summary judgment should have been granted.

Appellant challenges a Law Division order confirming an arbitration award which sustained tenure charges filed by respondent West New York Board of Education ("Board") against her; demoted her from assistant principal to a fourth-grade teacher; and determined she was not entitled to back pay withheld from her under N.J.S.A. 18A:6-14 for a one-hundred-and-twenty-day suspension-without-pay period that was imposed upon the Board's certification of the charges. This appeal requires us to consider issues of first impression: (1) whether the arbitrator had the authority to demote appellant under N.J.S.A. 18A:6-16; and (2) whether the arbitrator had the right to deny appellant back pay arising from her suspension-without-pay period after determining her employment should not be terminated.

The court affirms the arbitrator's determination that appellant was not entitled to back pay withheld from her during her suspension-without-pay period based upon his determination that her conduct was unbecoming of a teaching staff member. The court reverses and remands because upon determining appellant's conduct was unbecoming but that she should not be terminated, the arbitrator lacked the statutory authority to demote her from her assistant principal position and he could only reduce her compensation. Appellant should be reinstated to her assistant principal position. On remand, the arbitrator must determine to what extent, if any, appellant's compensation should be further reduced through suspending her without pay or withholding salary increments, or a combination thereof.

Under the totality of the circumstances reviewed here, the State Police detectives who entered the neighboring residence without a warrant did not have grounds to invoke the hot pursuit doctrine. The warrantless entry violated the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution. Although the Court is disturbed by the manner of execution of this warrant, it declines to adopt a rigid, one-size-fits-all approach to the execution of all ATS arrest warrants.

In this matter, the court considered whether a municipality may approve a resolution to place non-binding public opinion questions before the electorate when initiative petitions concerning the identical issues are on the same ballot. The majority concluded the municipality was not authorized under N.J.S.A. 19:37-1 to pass the resolutions regarding the public opinion questions because the electorate was considering the same issues on the ballot in their vote on the initiative questions.

The court also considered the trial court's order that denied plaintiffs' application for an award of attorney's fees under the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2. Because defendants' actions of passing the unauthorized resolutions deprived plaintiffs of their substantive right to initiative, the majority reversed the court's order denying plaintiffs a counsel fee award.

Judge Smith dissented.

The jury could not have understood that the reasonable corporal punishment language in the child endangerment charge also applied to the simple assault charge. The trial court erred in failing to instruct the jury, in the context of the simple assault charge, that reasonable corporal punishment is not prohibited. Because that error in jury instructions could have led the jury to an unjust result, the Court vacates defendant’s conviction and remands for further proceedings.

Based on a close analysis of the statutory language and legislative history, the trial court held that the New Jersey First Act, N.J.S.A. 52:14-7, did not apply to unpaid volunteers serving on government boards. Specifically, the court found that four volunteer members of the Rutgers University Board of Governors who lived outside the State of New Jersey were not subject to the Act and thus would not be removed from the Board based on their out-of-state residence as sought by plaintiff.

In the alternative, the court found that if the New Jersey First Act were applied to volunteer members of the Rutgers Board of Governors residing outside of New Jersey, such an application of the Act would violate the Contract Clauses of the United States and New Jersey Constitutions as being inconsistent with the Rutgers Charter, which requires University consent before legislative changes to the governance of the University are enacted.

The Court joins the majority of jurisdictions that reject a per se ban on claims by new businesses for lost profits damages, and it declines to follow Weiss to the extent that it bars any claim by a new business for such damages. Claims for lost profits damages are governed by the standard of reasonable certainty and require a fact-sensitive analysis. Because it is substantially more difficult for a new business to establish lost profits damages with reasonable certainty, a trial court should carefully scrutinize a new business’s claim that a defendant’s tortious conduct or breach of contract prevented it from profiting from an enterprise in which it has no experience and should bar that claim unless it can be proven with reasonable certainty. The Court remands these matters so that the trial court may decide defendants’ motions in accordance with the proper standard.

Plaintiff Estate brought a preemptive action seeking to enjoin defendant, M.A.-V., from filing a sexual abuse complaint using decedent’s actual name rather than initials. Defendant had provided to the Estate’s executors a copy of a proposed complaint that contained specific allegations of sexual abuse alleged to have been committed by decedent against defendant in 1988, when defendant was thirteen years old. Plaintiff argued the statute governing Actions for Sexual Abuse, N.J.S.A. 2A:61B-1, section (f)(1), was intended to protect confidentiality of alleged perpetrators as well as victims. To obtain the injunction plaintiff would have to satisfy the four-part test of Crowe v. De Gioia, 90 N.J. 126 (1992). The court held plaintiff could not satisfy the second prong, that "the legal rights underlying plaintiff’s claim are well-settled." The court ruled the issue of whether the Sexual Abuse statute afforded a sexual abuse defendant the right to demand confidentiality had been decided in T.S.R. v. J.C., 288 N.J. Super. 48, 53 (App. Div. 1996) ("[T]he statute grants only the plaintiff-victim the option of refusing to disclose identifying information.").

A jury convicted defendant of two counts of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), two counts of second-degree vehicular homicide, N.J.S.A. 2C:11-5(a), one count of third-degree possession of gamma hydroxybutyrate (GHB), N.J.S.A. 2C:35-10.2(a), and one count of third-degree possession of gamma-butyrolactone (GBL), N.J.S.A. 2C:35-10(a)(1) and (3). The State contended defendant was the under the influence of GHB and had not slept for more than twenty-four hours when his car slammed into the back of another car stopped at a toll booth at Exit 14C of the New Jersey Turnpike at more than fifty miles per hour. The driver of the other car and his five-year-old daughter died as a result. The judge imposed an aggregate thirty-seven-year term of imprisonment, with a twenty-seven-year, two-month, and eleven-day period of parole ineligibility.

The court rejected defendant's challenge to the admissibility of the statement he gave to State Troopers while hospitalized the morning after the accident and after he was given his Miranda rights. Defendant contended, in part, that detectives failed to inform him that two people died in the crash, telling him only that they were investigating the accident, before he waived his rights. The court distinguished the facts from those presented in State v. Diaz, 470 N.J. Super. 495 (App. Div. 2022), which was filed before the Court issued its opinion in State v. Sims, 250 N.J. 189 (2022), reversing our earlier decision in that case.

The court reversed defendant's convictions for aggravated manslaughter, however, finding it was plain error for the judge to not provide ins tructions on second-degree reckless manslaughter as a lesser-included offense of aggravated manslaughter. The court rejected the State's argument that any error was harmless, given the jury's guilty verdict on the two vehicular homicide counts, noting the judge never explained the heightened degree of recklessness required to convict defendant of aggravated or reckless manslaughter committed by driving a vehicle, versus the element of recklessness required to sustain a conviction for vehicular homicide.

Plaintiffs' complaint alleged wrongful eviction under the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12, fraud, negligent misrepresentation, and other claims. Defendants filed an answer and counterclaim, asserting plaintiffs' negligence caused damage to the property and rendered portions of it "unusable." The parties cross-moved for summary judgment on the wrongful eviction cause of action, and the judge granted defendants summary judgment and denied plaintiffs' motion.

Defendants then made an offer of judgment, which plaintiffs accepted the next day. Plaintiffs' proposed order for judgment was limited to "the remaining counts" of the complaint and sought to preserve appeal of the interlocutory summary judgment orders. Defendants objected, citing Rule 4:58-4(c), which provides: "If a claimant asserts multiple claims for relief or if a counterclaim has been asserted against the claimant, the claimant's offer shall include all claims made by or against that claimant. If a party not originally a claimant asserts a counterclaim, that party's offer shall also include all claims by and against that party." (emphasis added). The judge entered defendants' proposed order of judgment that was not limited to "the remaining counts" of the complaint.

Plaintiffs appealed, in part arguing the interlocutory orders were appealable despite their acceptance of defendants' offer of judgment, citing, as they did in the Law Division, our decision in City of Cape May v. Coldren, 329 N.J. Super. 1, 10 (App. Div. 2000). The court affirmed the order of judgment without considering the merits of plaintiffs' arguments regarding the interlocutory orders by distinguishing Coldren on its facts and noting that decision was issued prior to adoption of Rule 4:58-4(c). Plaintiffs' acceptance of the offer of judgment settled all claims "by and against" defendants, including any claims dismissed on summary judgment.

Fulton Bank (the Bank) foreclosed on a mortgage recorded prior to the filing of Iron Gate at Galloway's Homeowners' Association's (HOA) Declaration of Covenants. The HOA was created and the Declaration filed pursuant to Galloway Township's major subdivision approval of the relevant lots. The Bank sold the remaining lots after foreclosure, but at closing refused to pay the HOA fees accrued during its period of ownership. The Bank filed a motion under the foreclosure docket number, contending it owed no fees because foreclosure on the earlier-filed mortgage effectively nullified the Declaration of Covenants. The court concluded that the Bank was liable for the fees in arrears because the Declaration constituted an equitable servitude running with the land, as outlined in Highland Lakes Country Club & Cmty. Ass'n v. Franzino, 186 N.J. 99 (2006).