Published Appellate Court Opinions

In reversing a partial summary judgment entered in defendants' favor, the court rejected the notion that plaintiffs – in alleging an invasion of their privacy in an office building's restroom – could only claim the presence of a hidden recording device by demonstrating their images were actually captured. In adhering to the general principles delineated in Soliman v. Kushner Cos., 433 N.J. Super. 153 (App. Div. 2013), the court concluded that an intrusion on seclusion occurs when a recording device is surreptitiously present notwithstanding whether the victim was ever recorded because the tort is intended to protect the victim's peace of mind and the comfort associated with the expectation of privacy.

A court issued wiretap orders pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -37, which were later suppressed. The estate of an aggrieved person moved to unseal the intercepted conversations and evidence derived for use in a state civil forfeiture action and a federal civil rights action. The Appellate Division holds disclosure for use in civil litigation is permissible "upon a showing of good cause" under N.J.S.A. 2A:156A-17(c), and disapproves the contrary ruling in In re Disciplinary Proceedings Against Spinelli, 212 N.J. Super. 526 (Law Div. 1986). Section 17(c) has no federal counterpart under Title III, which does not prevent such disclosure of the fruits of a state wiretap order. Suppression does not preclude disclosure in these circumstances.

The trial court may order disclosure only if the need for disclosure outweighs the harms disclosure is likely to cause, subject to review for abuse of discretion. If a disclosure would reveal a person was a confidential informant for a particular agency, in a particular investigation, during a particular period, or in a particular way, the court must consider whether it is publicly known that the person cooperated with that agency, in that investigation, during that period, or in that way.

The panel reversed the Division of Child Protection and Permanency's administrative finding that an allegation a father abused or neglected his young daughter was "not established" rather than "unfounded." N.J.A.C. 3A:10-7.3(c)(3), (4). The finding meant there was some, but not a preponderance of evidence, he harmed her or "placed [her] at risk of harm." The Division's finding was unreasonable because its investigation was incomplete. The Division did not consider evidence related to an order to show cause the father's estranged wife filed in their pending divorce, or a video she took of the incident. A matrimonial judge ordered the Division to investigate both parents, but it only investigated the father. The Division's finding also lacked sufficient support in the record the Division did compile. The father tried to stop his daughter from throwing things during a tantrum by holding her arms. She broke free and fell, but suffered no injury. That evidence did not show that he placed her at risk of harm.

An individual who has been discharged from probation, albeit with an imperfect record while on probation, and who has subsequently paid all outstanding fines, is not barred from applying for expungement. The trial court erred in holding that petitioner was barred for applying for expungement under N.J.S.A. 2C:52-2(a)(2), because she was discharged from probation "without improvement."

The court reverses the denial of defendants' motion to suppress drugs and guns found after a plain view sighting through the open door of an apartment. The police used a tool to force entry into the locked apartment building twice before approaching the fourth-floor apartment door. The State, conceding a lack of probable cause, argued that the forced entry into the building did not violate defendants' expectation of privacy because of the size of the apartment building. The court refused to "condone the police forcing entry into a locked residential apartment building while on an investigative hunt for suspected criminal activity."

Finding the pace of the proceedings here to be glacial in comparison to that which the Court found "troubling" in Division of Child Protection and Permanency v. E.D.-O., 223 N.J. 166, 194 (2015), the court concluded that the Department of Children and Families' inexcusable failure to provide complete discovery for a period of years – a circumstance that delayed the start of an evidentiary hearing about events that occurred more than six years earlier – fully justified an ALJ's dismissal of the Department's abuse and license-removal proceedings against the defendant and warranted the court's conclusion that the Department's reversal of the ALJ's ruling was arbitrary, capricious and unreasonable.

The court holds that the New Jersey Uniform Arbitration Act, N.J.S.A. 2A:23B-1 to -32, does not require an arbitrator to hold an in-person hearing at a physical location. Thus, unless the parties contract for an in-person arbitration hearing, or they show specialized need for such a hearing, arbitrators can conduct hearings by telephone conference or by other electronic means.

Accordingly, the court affirms an order that denied the application of defendant Hereford Insurance Company to compel an arbitration organization, Arbitration Forums, Inc., to hold an in-person arbitration hearing concerning the reimbursement of personal injury protection (PIP) benefits.

The court granted the State's motion for leave to appeal in these four appeals involving seven juveniles, all charged with crimes or disorderly persons offenses under Title 35 and 36 of the Criminal Code. N.J.S.A. 2A:4A-71(b) provides such complaints "shall be referred for court action, unless the prosecutor otherwise consents to diversion." When the complaints were screened by intake services, the prosecutor did not consent.

In two of the appeals, the Family Part judge, without notice or hearing, diverted complaints charging the juveniles with criminal offenses, concluding that N.J.S.A. 2A:4A-73(a), vested the judge, not the prosecutor, with discretion to divert any juvenile complaint. The court reversed, noting that Rule 5:20-1(c) provides complaints charging juveniles with crimes "shall not be diverted unless the prosecutor consents thereto."

In the other two appeals, the juveniles were charged with disorderly persons offenses under Title 35 and 36 of the Criminal Code. In one of the appeals, the judge diverted the case without any hearing. The court reversed.

In the other appeal, the judge held a hearing, noted the prosecutor's objection and ordered diversion. The court affirmed, concluding that although the failure to include these offenses within the scope of Rule 5:20-1(c) may have been inadvertent, the plain language of the Rule did not limit the judge's discretion to divert the complaints over the State's objection. The court referred the opinion to the Committee on Practice in the Family Part for consideration.

Empower Our Neighborhoods (EON), a community based advocacy group, partially succeeded on an election law claim. They obtained a judgment eliminating the district residency requirements, pursuant to Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999), for circulators of: recall petitions, petitions nominating independent candidates in general elections, petitions selecting candidates from local parties, and petitions nominating Board of Education members. The court affirmed Judge Mary Jacobson's decision that EON's success was sufficient to merit the award of counsel fees, apportioned among the defendants based on the extent of their responsibility for the constitutional tort.

The court remanded for a new trial a criminal matter in which the jury was instructed only as to murder, N.J.S.A. 2C:11 3(a)(1). One of two co-defendants testified at trial that he unwittingly killed the victim while struggling to take a gun away from someone——not the victim——who was trying to shoot him. He was convicted of murder, and his co-defendant was also convicted of murder as his accomplice. The court concluded the jury should have also been given a molded self-defense instruction, N.J.S.A. 2C:3-4(a), and been instructed as to the lesser-includeds of aggravated manslaughter, N.J.S.A. 2C:11 4(a)(1), and manslaughter, N.J.S.A. 2C:11-4(b)(1). The failure to do so prejudiced defendants' rights to a fair trial.

The court addresses certain legal questions that arise when a case that involves the custody of a child under a Title 9 abuse or neglect FN complaint filed by the Division of Child Protection and Permanency is interrupted by a private custody case initiated by a member of the child’s family. To ensure legal protection for the parents, the court suggests a method of handling FD non-dissolution complaints when they are heard in the midst of FN abuse or neglect litigation. The FD hearing should be incorporated into the FN litigation and attorneys for the parents and children should participate. The court does not reverse here because the mother consented to the result. The court also affirms the finding of educational neglect and the dismissal of the FN litigation despite the objection of the mother.

In this medical malpractice action, defendant's trial testimony concerning reliance on a medical publication in treating plaintiff was materially different from his denial during discovery of any knowledge of such literature. The court's majority holds defense counsel's failure to discharge his duty of candor to the court and counsel by disclosing the anticipated material change in defendant's testimony resulted in plain error, and the trial court erred by denying plaintiff's motion for a new trial.

The dissent concludes counsel's failure to object to defendant's testimony was part of a deliberate trial strategy, as the publication at issue supported plaintiffs' theory of the case. Considered in the context of the extensive expert testimony presented during a lengthy trial, defendant's testimony about the medical article did not constitute plain error, and the trial court did not err by so holding when it denied plaintiff's motion for a new trial.

The court granted leave to resolve the issue of whether the competency statutes of the criminal code, specifically N.J.S.A. 2C:4-4 to -6, apply to juveniles. We conclude the statutes do apply to juveniles, and that N.J.S.A. 2C:4-5(a)(2) requires the Department of Human Services, or its successor, to provide or arrange for examination of a juvenile for fitness to proceed as DHS would for an adult, with such accommodation for the juvenile's youth as is necessary and appropriate.

The court affirms the Public Employment Relations Commission's ruling that the contribution rates included in the Pension and Health Care Benefits Act (Chapter 78) L. 2011, c. 78, N.J.S.A. 52:14-17.28c, which top out at thirty-five percent, do not preempt the provision in the parties' contract requiring eligible retirees to contribute fifty percent of the costs of their health care coverage.

In this medical malpractice case, the trial court ruled the fictitious pleading process under Rule 4:26-4 did not justify plaintiff's addition of three defendant physicians to the lawsuit after the statute of limitations had run. Nevertheless, the court equitably estopped the physicians from obtaining dismissal of the claims against them, finding they had had unduly delayed in moving for such dispositive relief after about a year of costly discovery had occurred.

The panel reverses the trial court's fictitious pleading ruling as to one of the three co-defendants, because decedent's hospital records did not legibly reveal that particular doctor's name and involvement in decedent's care. It was unreasonable to expect plaintiff to have ascertained that particular doctor's identity and negligent conduct until her counsel received a post-suit affidavit from the defense clarifying which doctors had actually been involved in treating decedent.

The panel affirms the trial court's fictitious pleading ruling as to the other two co-defendants. Plaintiff could have reasonably ascertained the respective identities and involvement of those two doctors who took part in decedent's care.

As an important caveat, the panel allows plaintiff's claims to proceed against those two doctors to the extent they may have acted as the decedent's "attending physician." The hospital records misleadingly and erroneously identified a different doctor, who was actually on vacation at the time, as decedent's attending physician.

Lastly, the panel overturns the court's application of principles of equitable estoppel. In the absence of a case management order or court rule prescribing an earlier deadline for filing such a motion, or an express misrepresentation made to plaintiff, defendants did not forfeit their rights to file a limitations-based dismissal motion near the end of the discovery period.

The court affirmed a judgment finding an indenture trustee's duties are limited to the obligations spelled out in the bond documents, and to associated non-discretionary ministerial functions. Accordingly, the indenture trustee had no duty to advise the mortgagor regarding the deferred interest provision in the bond documents. Furthermore, the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8, did apply, and since the mortgagor's lack of familiarity with the terms of the financing agreement constituted negligence greater than that of the bank, the mortgagor could not recover against the bank. Finally, the bank was not entitled to counsel fees it incurred when defending against claims of its own ordinary negligence.

An alleged mentally ill man died strapped to a "restraint chair" in the Middlesex County Adult Correctional Facility, approximately twenty-four hours after he was arrested for assault and resisting arrest. Decedent's estate filed a multi-count civil suit against a number of public entities and their employees, including three nurses employed by the Correctional Facility. The trial court granted the nurses' unopposed motion to dismiss with prejudice the counts in the complaint alleging professional malpractice based on plaintiffs' failure to file a timely Affidavit of Merit (AOM). Represented by different counsel, plaintiffs argued they were entitled to serve the AOM 107 days after the expiration of the maximum statutory period based on the equitable doctrine of substantial compliance and "extraordinary circumstances." The court agreed and vacated the dismissal with prejudice.

In this case of first impression, this court interprets and applies the Overdose Prevention Act (the "OPA" or "the Act"), N.J.S.A. 2C:35-30 to -31; N.J.S.A. 24:6J-1 to -6, a statute enacted in 2013. The OPA is intended to save lives by "encouraging witnesses and victims of drug overdoses to seek medical assistance." N.J.S.A. 24:6J-2.

Among other things, the statute confers immunity upon two categories of qualifying persons from being "arrested, charged, prosecuted, or convicted" for certain enumerated possessory drug offenses. The immunity covers persons: (1) who act in good faith to request medical assistance for individuals perceived to be experiencing a "drug overdose," as defined by N.J.S.A. 24:6J-3; or (2) who experience a drug overdose and have been the subject of such a good faith request for medical assistance by others, or who have sought such assistance themselves. See N.J.S.A. 2C:35-30 (granting immunity for the persons making such requests for assistance); N.J.S.A. 2C:35-31 (granting immunity for the persons who are the subject of such eligible requests).

The panel rejects the State's argument that the immunity conferred by the Act contains an implied exception for persons who are only "intoxicated." Instead, courts applying the statute must address the specified terms of the definition of a "drug overdose" set forth in N.J.S.A. 24:6J-3. That definition requires that the person be in "an acute condition including, but not limited to, physical illness, coma, mania, hysteria, or death resulting from the consumption or use of a controlled dangerous substance [CDS] or another substance with which a [CDS] was combined and that a layperson would reasonably believe to require medical assistance." (emphasis added).

The panel further concludes that, as the words of the statute specify, the protection of the OPA's immunity extends to all phases of the criminal process, including arrest, charge, prosecution, and conviction.

Because the sparse factual record in this case is unclear in several respects and inadequate to resolve the disputed immunity issues, the panel remands this case for further proceedings to develop the facts in greater depth.

In this mortgage foreclosure action, the trial court declared the foreclosure judgment satisfied and ordered plaintiff to refund an overpayment to defendant. Plaintiff appealed, arguing the trial court abused its discretion in finding equitable redemption by a third-party which was not a borrower or guarantor of the loan, and had no property interest in the mortgaged premises. Plaintiff also argued the trial court abused its discretion by not enforcing the cross-collateralization clause and by not precluding redemption under the doctrine of unclean hands.

Pursuant to the merger doctrine, the panel held plaintiff is precluded from demanding payment of the aggregate loan balance under a cross-collateralization clause beyond the amount reflected in the foreclosure judgment. The merger doctrine also precluded enforcement of restrictions imposed in the note's prepayment clause.

Since plaintiff retained, deposited, and threatened to apply the allegedly unacceptable check to the balances owed on the other cross-collateralized loans in its sole discretion, rather than returning the check to the payor, the panel held plaintiff had accepted the payment, thereby satisfying the loan and foreclosure judgment. In light of this ruling, the panel did not reach the issue of whether the payor could redeem the property.

Finally, the panel held that defendants were not guilty of unclean hands merely because they had defaulted.

In these consolidated foreclosure actions, the trial judge conducted – as required by our earlier decision, Brunswick Bank & Tr. v. Affiliated Bldg. Corp., 440 N.J. Super. 118 (App. Div. 2015) – an evidentiary hearing to determine whether plaintiff, during its serial collection efforts, had recouped more than it was owed. The trial judge concluded that defendants failed to provide "competent" evidence on the fair market value of properties plaintiff obtained at sheriff sales at or about the time plaintiff neared a 100% recoupment of the money due on the combined loans. In remanding again, the court held, among other things, that the judge erred in concluding defendants' evidence was incompetent, that there was admissible evidence suggesting a fair market value in excess of the amount still owed to plaintiff, and that the trial court is authorized, in the absence of the parties' production of expert testimony, to retain its own expert to opine on these relevant subjects to ensure plaintiff does not receive an undue windfall.