Published Appellate Court Opinions

Affirming the grant of summary judgment dismissing the plaintiff-insurer's subrogation action, the court broadly interprets the waiver-of-subrogation provisions of a widely used American Institute of Architects (AIA) form construction contract. The court relies on the contract's plain language, the majority view of other states' courts, and the evident goal to transfer the risk of construction-related losses to insurers and preclude lawsuits among contracting parties. In particular, the court rejects the insurer's argument that the subrogation waiver was limited to damages to the "Work" incurred during construction. Rather, the subrogation waiver extended to claims related to damages to property outside the Work, incurred after completion, because the insurance the owner obtained to comply with the contract also provided coverage for those damages.

In this appeal, the court held that reimbursement of a section 40 workers' compensation lien following a recovery in a third-party action should be based on the fee ratio calculated for the overall settlement and not the sliding contingent fee scale set forth in Rule 1:21-7. Our Supreme Court's holding in Caputo v. Best Foods, Inc., 17 N.J. 259 (1955) is still controlling law.

N.J.S.A. 54:4-3.30(b) provides that the surviving spouse of a military veteran who meets the statutory requirements for a property tax exemption is also entitled to the exemption which "shall continue during the surviving spouse's widowhood or widowerhood."

Plaintiff was married to a veteran who met all the statutory requirements except that he was not "declared to have suffered a service-connected disability." Although the veteran passed away in 1989, the United States Veteran's Administration declared in 2014 that he suffered from a service-related disability as a result of his exposure to Agent Orange, thus qualifying him for an exemption. As a result, plaintiff filed for a surviving spouse exemption.

Because plaintiff had remarried in 1993, the court determined plaintiff did not qualify for the exemption. The court interpreted the property-tax-exemption statutory scheme and concluded the Legislature intended the right to an exemption for a veteran's surviving spouse continued only during her widowhood from the veteran. The right to the exemption was extinguished upon her remarriage notwithstanding that she, at the time of her application for the exemption, was again widowed after the passing of her second husband in 1997. Recognizing that statutes granting property tax exemptions are subject to strict construction, the court held: "It is not our intent to deny a tax exemption to the widow of a disabled combat-veteran. But it is not our role to amend statutes to ordain what we may deem laudable."

A defendant who violates a condition in a pretrial release order entered pursuant to the Criminal Justice Reform Act (CJRA or the Act), N.J.S.A. 2A:162-15 to -26, may be charged with contempt of court under N.J.S.A. 2C:29-9(a). Moreover, double jeopardy principles do not preclude the State from charging the defendant with contempt based on his or her failure to comply with the "no-new offense" condition of the release order, and also charging the defendant with commission of that new offense.

Defendants failed to perfect a prior appeal, which the court dismissed on its own motion, leaving for disposition only issues raised by a non-party in a cross-appeal, to which only plaintiffs responded. The cross-appeal was decided on its merits, with the court remanding only for entry of an amended judgment in the cross-appellant's favor.

After entry of the amended judgment, defendants filed an appeal. The court dismissed the appeal because the arguments posed by defendants in the new appeal – arguments that challenged evidence rulings made during a trial that occurred more than two years earlier, as well as the trial judge's disposition of pretrial and post-trial motions – could have been pursued and decided in defendants' prior, abandoned appeal.

Plaintiff appeals the dismissal, pursuant to Rule 4:6-2, of his complaint, which alleged defendant terminated his employment as a funeral director because, as a cancer sufferer, he was prescribed and used medical marijuana in conformity with the Compassionate Use Act, N.J.S.A. 24:6I-1 to -16. Plaintiff claimed his termination violated the Law Against Discrimination, N.J.S.A. 10:5-1 to -49. The trial judge dismissed the action, concluding that the Compassionate Use Act does not require employers to accommodate an employee's use of medical marijuana. The court reversed because the Compassionate Use Act only declares that "nothing" in that Act "requires" such an accommodation, N.J.S.A. 24:6I-14; while that language plainly expressed that the Compassionate Use Act had not created such an obligation, it also plainly did not foreclose the existence of such an obligation elsewhere, such as in the Law Against Discrimination, which makes it unlawful for an employer to discriminate because of an employee's disability, N.J.S.A. 10:5-12(a). Moreover, the Compassionate Use Act expressly disavowed in that Act only an obligation to accommodate the use of medical marijuana "in any workplace," N.J.S.A. 24:6I-14, and plaintiff alleged he sought an accommodation for his use "off site" and after hours.

The court consolidates these four appeals for the purpose of writing a single opinion because they all present the issue of whether State v. J.L.G., 234 N.J. 265, 272 (2018), should be applied retroactively to reverse defendants' convictions of child sexual assault where an expert in "Child Sexual Assault Accommodation Syndrome" (CSAAS) was permitted to testify at trial. We accord J.L.G. pipeline retroactivity and reverse, because, given the State's reliance on the credibility of the victims and the paucity of other supporting evidence, the admission of CSAAS expert testimony in these four cases calls into question the validity of the guilty verdicts.

The court held this indigent defendant should not have been required to proceed unrepresented in his appeal of a municipal court conviction. It resulted in a consequence of magnitude. Defendant did not waive his right to counsel, assumed he would be assigned a third attorney after two were relieved, and did not engage in such egregious conduct as to constitute a forfeiture of his right to representation. The conviction was thus reversed and the matter remanded for a new trial de novo in the Law Division.

Defendant was convicted of third-degree stalking and he appealed. The court affirms the constitutionality of the anti-stalking statute as it was amended in 2009, N.J.S.A. 2C:12-10, holding that it is not facially overbroad nor unconstitutionally broad or vague as applied to defendant. The court rejects defendant's other claims that he was deprived of a fair trial.

During defendant's robbery trial, in his case-in-chief, he moved into evidence a 9-1-1 tape of his call to police. The trial judge admitted the evidence under two exceptions to the hearsay rule: present sense impression, N.J.R.E. 803(c)(1), and excited utterance, N.J.R.E. 803(c)(2). The judge allowed the State, in rebuttal, to introduce defendant's sanitized criminal history for impeachment purposes pursuant to N.J.R.E. 806 and gave the Model Jury Charge (Criminal), "Credibility - Prior Conviction of a Defendant," (rev. Feb. 24, 2003). The court concluded that the admission of the prior criminal history was proper, accompanied by the limiting instruction. Although defendant did not testify, the rule allows the use of impeaching material when hearsay is introduced.

In defendant's original appeal, the court reversed three convictions of theft of immovable property and remanded for a new trial, leaving the other six convictions intact. State v. Kosch, 444 N.J. Super. 368 (App. Div.), certif. denied, 227 N.J. 369 (2016). The trial judge then resentenced defendant on the other six convictions – to the same aggregate sentence – without disposing of the three remanded charges; the court reversed because, among other things, the trial judge failed to comply with the prior mandate. State v. Kosch, 454 N.J. Super. 440 (App. Div. 2018). The State then voluntarily dismissed the three remanded charges, and the judge resentenced defendant; to reach an aggregate sentence the equivalent of the original sentence, the judge imposed for the first time a fifteen-year extended term on one of the remaining convictions – to which defendant had originally been sentenced to a non-extended seven-year term.

In this third appeal, the court followed State v. Rodriguez, 97 N.J. 263 (1984), and adhered to State v. Young, 379 N.J. Super. 498 (App. Div. 2005), in finding no double jeopardy or due process violations because the new sentence did not exceed in the aggregate that which was originally imposed and which defendant had begun serving. But the court also held that just because the sentencing judge possessed the constitutional authority to impose the same aggregate sentence didn't mean he should have. The court remanded for resentencing because, by imposing the same sentence, the judge failed to adequately appreciate the impact caused by the absence of three convictions on which the original sentence was imposed.

In the aftermath of Super Storm Sandy and the ensuing statewide gasoline shortage, appellant, the executive director of a regional sewerage authority, permitted some essential employees to fuel their private vehicles from the Authority's gasoline pump. She also permitted a member of the Authority's board of commissioners, who was an employee and authorized to sign authority checks, to gas up his private vehicle after asking him to find food for the Authority's employees at nearby restaurants and to "commandeer" a local gas station to meet the needs of the essential employees.

By permitting the board member to use Authority gas, the Local Finance Board (LFB) concluded appellant violated N.J.S.A. 40A:9-22.5(c), a provision of the Local Government Ethics Law (LGEL), N.J.S.A. 40A:9-22.1 to -22.25, which provides: "No local government officer or employee shall use or attempt to use his official position to secure unwarranted privileges or advantages for himself or others."

The court reversed, concluding that this provision of the LGEL, unlike others, requires proof of a specific intent on the part of the local officer to secure the unwarranted privilege or advantage. In addition, the court concludes the gasoline appellant secured for the board member and employee was not an "unwarranted privilege or advantage" under the statute.

Appellant was denied promotion to the position of sergeant when his employer chose the first, third and fourth police officers from a certified list, skipping over appellant who placed second; the first and third are Caucasian officers, while appellant and the fourth are African-American. The Civil Service Commission denied appellant's claim of retaliation arising from grievances about an earlier promotion; in so acting, the Commission did not conduct an evidentiary hearing but simply rejected what it called appellant's "mere allegations" that the employer retaliated against him. The court remanded for an evidentiary hearing so the parties' factual disputes could be resolved and so the Commission might determine – even if not expressly or clearly raised previously – whether the employer's reasons for skipping over appellant were unlawfully pretextual.

The legal question in this appeal is whether, as a matter of law, a police officer is ineligible for ordinary disability benefits as a member of the Police & Firemen's Retirement System (PFRS) if the officer separates from service by irrevocably resigning from employment to resolve pending drug-related disciplinary charges. Recognizing that N.J.S.A. 43:16A-8(2) requires disability retirees to return to duty once their disability has "vanished or has materially diminished," and emphasizing that an irrevocable resignation makes returning to duty impossible and therefore deprives the PFRS Board of Trustees from terminating benefits, this court held that such a member is ineligible.

The court granted the State leave to appeal from an order granting defendant's motion to withdraw his guilty plea prior to sentencing.

Defendant entered into a plea agreement calling for a five-year Drug Court probationary term with an alternate sentence of a four-year prison term subject to an eighteen-month period of parole ineligibility if he was terminated from Drug Court. Before sentencing, defendant was charged with armed robbery and related weapon offenses. Defendant remained incarcerated on the new charges while awaiting trial. After being acquitted of the new charges, he moved to withdraw his guilty plea. By the time the motion was heard, defendant had accrued an additional 366 days of jail credit. The trial court granted the motion, finding defendant's reasonable expectations at the time of his plea were not met because of the additional jail credit.

The court reverses and remands for sentencing, finding the trial court abused its discretion in granting the motion. Defendant did not present a colorable claim of innocence. His reasonable expectations as they existed at the time of the plea hearing were met by enforcing the plea agreement despite the unanticipated accrual of additional jail credit before sentencing.

In these four small claim suits, plaintiffs sought relief from defendants because their negligence caused damage to plaintiffs' vehicles. Of interest, plaintiffs sought damages because databases like CarFax mention the vehicles' newly-acquired accident histories that – plaintiffs claimed – diminished the vehicles' value even though they were repaired to their pre-accident condition and function. In finding these damages recoverable, the court held that fixing an amount for the stigma of this accident history did not require undue speculation. Such a claim, the court held, is merely subject to proof, which plaintiffs provided via an expert who testified that the "scarlet letter" of an accident history reduces a vehicle's value; in other words, the court found the claim cognizable because it is reasonable to assume that, all other things being equal, a buyer will likely pay less for a vehicle with an accident history than a vehicle without.

Defendant is charged in an indictment with attempted theft by extortion, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-5(c). The evidence presented to the grand jury shows that while defendant was located in Maryland, he called and emailed the victim's attorney in New Jersey and communicated threats to disclose private facts about the victim, who resided in New York, unless the victim agreed to contribute monies to an alleged charity defendant operated. The Law Division judge dismissed the indictment, finding New Jersey lacked territorial jurisdiction over the alleged crime, N.J.S.A. 2C:1-3.

The court reverses the dismissal of the indictment. The court concludes that defendant's delivery of the threats into, and the victim's attorney's receipt of the threats in, New Jersey constitute conduct occurring in New Jersey that is an element of the crime of attempted theft by extortion, and therefore there is territorial jurisdiction over the crime charged in the indictment under N.J.S.A. 2C:1-3(a)(1).

Defendant appeals from the judgment memorializing the verdict and from the trial court's order denying his motion for a new trial. Among other things, defendant contends that the jury's award of wrongful death damages is unsupported by the evidence, particularly without any expert testimony to substantiate the pecuniary value of the loss of Patrick's advice, guidance, and companionship. This court rejects defendant's contention and reaffirms the long-standing principle, as expressed in Lesniak v. County of Bergen, 117 N.J. 12, 32-33 (1989), that expert testimony is not required to establish the pecuniary value of such services in claims for wrongful death. This holding is consistent with the common law in the fourteen other jurisdictions that, like New Jersey, restrict recovery in wrongful death actions to pecuniary loss, but do not require expert testimony to substantiate damages.

This appeal affects members of the Public Employees' Retirement System (PERS) who converted their group life insurance policy into an individual policy, but died while their retirement applications were pending and whose beneficiaries chose "retired" benefits. In upholding N.J.A.C. 17:2-3.8(b) (clarifying the effective date for converted individual insurance policies) and N.J.A.C. 17:2-3.13 (addressing benefits payable to beneficiaries when members die with retirement applications pending), this court recognized the longstanding practice that beneficiaries of PERS members may receive either a "retired" benefit or an "active" benefit, but not both.

In this Consumer Fraud Act action, the Law Division found defendants engaged in an unconscionable commercial practice by filing a criminal complaint against plaintiff as a means of collecting a consumer debt. The parties settled on damages and defendants reserved the right to appeal the summary -judgment decision on liability. A different judge awarded plaintiff six percent of the counsel fees requested and no costs of suit or filing fees. Both parties now appeal.

This court holds defendants bargained away their right to challenge the summary judgment decision and dismisses their appeal pursuant to Winberry v. Salisbury, 5 N.J. 240, 255 (1950). With respect to the award of counsel fees, this court holds the Law Division did not follow the standards established by the Court in Rendine v. Pantzer, 141 N.J. 292, 316-45 (1995) and violated N.J.S.A. 56:8-19 because it failed to award plaintiff costs of suit and filing fees.