Published Appellate Court Opinions

The panel reverses the trial court's summary judgment dismissal of plaintiff L.E.'s complaint that she was sexually assaulted in a high school bathroom during class hours as a result of the negligent supervision of defendant school board and its employees. The court holds that negligent supervision is distinct from a claimed failure to provide police protection services, or to enforce laws, for which the Tort Claims Act provides immunity, under N.J.S.A. 59:5-4, N.J.S.A. 59:3-5, and N.J.S.A. 59:2-4. Therefore, the trial court erred in relying on the Act in dismissing the complaint. Noting that the duty to supervise students during school hours on school property is well-established, the panel concludes that a jury could reasonably find that defendants violated the duty under the facts presented; and, despite the students' independent acts, the negligent supervision was a proximate cause of L.E.'s injuries.

Plaintiff filed a complaint that alleged five notices of intention to foreclose served on him by defendant BAC Home Loans Servicing, LP. (BAC) violated the Fair Foreclosure Act. He asserted that BAC – the alleged servicer of loans made in 2007 when plaintiff purchased his residence – neglected to include the name and address of the lender. Although no foreclosure action followed on the heels of these notices, plaintiff claims these FFA violations – not actionable on their own – may form the basis of a claim under the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA). Consequently, he argues that the trial judge erred in dismissing the complaint by applying the litigation privilege and by holding that the alleged FFA violation cannot support a TCCWNA claim. The court rejected the application of the litigation privilege but because the legal grounds upon which the latter determination was based have shifted since the trial judge's decision and the perfection of this appeal, see Spade v. Select Comfort Corp., 232 N.J. 504 (2018), the court vacated the order of dismissal and remanded to allow for an amended pleading expressing the true nature of his damage claim.

Where, as occurred here, decedent and her spouse transferred property to a trust, retained life interests in the property, and directed the trustee to transfer the property to a relative upon the death of decedent or her spouse, whichever is the last to occur, the Division of Taxation did not err by imposing an inheritance transfer tax on the full value of the property because decedent and her spouse held the property as tenants by the entirety, and the transfer was intended to take effect "at or after" decedent's death. N.J.S.A. 54:34-1(c).

In this medical malpractice action, plaintiffs claimed the board certified defendant doctors deviated from the standard of care in their specialties of pediatrics and pediatric critical care. The trial court barred the testimony of plaintiffs' expert, finding he did not satisfy the requirements of the New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -42. More particularly, the trial court found that although the expert was board certified in pediatrics and pediatric critical care, he was not qualified to testify under the Act because, at the time of the alleged malpractice, he did not spend a majority of his professional time in either active clinical practice in the specialties, as required by N.J.S.A. 2A:53A-41(a)(2)(a), or instructing students in the specialties as required by N.J.S.A. 2A:53A-41(a)(2)(b).

The court reverses and holds the expert satisfied the Act's qualification requirements. The court determined the evidence established the expert practiced in the same specialties as the defendant doctors, and thereby met the requirements of N.J.S.A. 2A:53A-41(a). The court further concluded that where the alleged malpractice occurred during the practice in a specialty recognized by the American Board of Medical Specialties and a defendant doctor is board certified in the specialty, the plaintiffs' expert must also satisfy either the requirements of N.J.S.A. 2A:53A-41(a)(1) or N.J.S.A. 2A:53A-41(a)(2). The court found the trial court erred by finding the expert was required to satisfy the requirements of either N.J.S.A. 2A:53A-41(a)(2)(a) or (b) where the evidence otherwise established the expert was credentialed at a hospital to treat patients for the condition at the time of the alleged malpractice, and thereby satisfied the requirements of N.J.S.A. 2A:53A-41(a)(1).

In this employment case, plaintiff asserted claims for violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and intentional infliction of emotional distress. The trial court granted defendants' motion to dismiss the complaint, finding plaintiff was obligated to litigate her claims in arbitration pursuant to an agreement she executed when she was hired. The agreement also included a punitive damages waiver, which the trial court determined was enforceable.

The court affirmed the order dismissing the complaint, finding the agreement satisfied the requirements established in Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014), and therefore plaintiff was obligated to prosecute her claims in arbitration. The court, however, modified the order, holding the punitive damages waiver is unenforceable because it violates the public policy underlying the LAD. The court further concluded the waiver should be severed from the agreement, and directed that the matter proceed to arbitration with plaintiff able to pursue her punitive damages claim.

This appeal involves the warrantless, nonconsensual search of children's school records for the name of their father, defendant J.S.G., who was the owner of a vehicle linked to two burglaries. Defendant filed a motion to suppress his name, arguing the police obtained it in violation of the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C.A. § 1232g, and its corresponding regulation, 34 C.F.R. § 99, and the New Jersey Pupil Records Act (NJPRA), N.J.S.A. 18A:36-19, and its corresponding regulations, N.J.A.C. 6A:32-7.1 to -7.8, governing the disclosure of student educational records.

We affirmed the denial of defendant's motion, finding FERPA did not create an enforceable right or provide for suppression as set forth in Gonzalez Univ. v. Doe, 536 U.S. 273 (2002). By analogy, we relied on State v. Evers, 175 N.J. 355 (2003), involving the Federal Electronic Communications Privacy Act (ECPA), to conclude that FERPA, like the ECPA, does not confer a reasonable expectation of privacy under the Fourth Amendment in student records.

We considered the NJPRA and its corresponding regulations, which permit school officials to provide directory information, including a student's name, to law enforcement, and which require school official to provide such information at the request of law enforcement. We also determined that like FERPA, the NJPRA merely provides administrative remedies for violations and does not permit a private right of action or suppression. We also ruled that the NJPRA does not create a reasonable expectation of privacy in student records under Article I, paragraph 7 of the New Jersey Constitution.

Finally, we followed federal law, which holds that a defendant's identity resulting from an unlawful search is not subject to the exclusionary rule.

This case involves the father's attempt to relocate the children to another State over the mother's objection. He relocated anyway without obtaining an order permitting the move. This court held that N.J.S.A. 9:2-2 required him to obtain an order permitting the removal before the actual relocation. On the mother's later motion, the judge ordered the father to return the children. In upholding the judge's refusal to do a best interests analysis on the mother's motion, this court concluded that the time for the judge to determine whether plaintiff had established "cause" for the removal of the children would have been before the relocation occurred, and that the father had the ultimate burden of proof.

The panel considered the appeals of owners of two adjacent tax lots on the site of the former Palisades Amusement Park in Cliffside Park from Tax Court judgments affirming the 2011-2013 tax assessments on the properties. The Tax Court found plaintiffs had overcome the presumption of the validity of the assessments; rejected the Borough's cost approach for valuing the property; rejected the reliability of improvement costs generated by computer software; accepted plaintiffs' expert's hybrid approach to valuation but found the appraiser lacked adequate objective evidence to support his adjustments; and determined there was not sufficient competent evidence in the record to permit the court to make an independent finding of true value, resulting in the assessments being affirmed. The panel affirms, substantially for the reasons expressed by Judge Fiamingo in her written opinion, which is reported at 29 N.J. Tax 245 (Tax 2016).

In this appeal, plaintiffs challenge the dismissal of their medical malpractice complaint for failure to serve an affidavit of merit. The motion judge rejected plaintiffs' argument that the "common knowledge" exception relieved them of that obligation because the nurses who cared for one of the plaintiffs failed to take any action when a nasogastric (NG) tube that was properly inserted into her, in accordance with a physician's order, became dislodged and allegedly caused her to suffer serious injuries. The motion judge found the fact that the tube was initially inserted in accordance with a physician's order, to be "critical in making this determination" and changed "this matter from a case where a jury with ordinary knowledge and experience could make a determination . . . to a standard of care case that requires expert testimony" because "a jury [could not] make a determination . . . without knowing what . . . a nurse [should] do" when a [NG] tube is inserted pursuant to an order but subsequently comes out.

The panel disagreed and concluded that the nurses' failure to take any action – not even contacting the physician who ordered that the tube be inserted – demonstrated that a health care provider failed to adhere to a doctor's order and therefore satisfied the purposes of the Affidavit of Merit Statute by establishing that plaintiffs' claim had sufficient merit under the common knowledge exception to proceed.

The Division of Child Protection and Permanency filed a Tile 9 abuse and neglect complaint against defendant alleging he sexually molested his biological daughter. Defendant argues the Family Part Judge improperly drew an adverse inference against him when he invoked his right against self-incrimination under the Fifth Amendment to the United States Constitution and this State's evidence rule N.J.R.E. 503 in response to the Division's request to call him as a witness in the fact-finding hearing. The Judge relied on this adverse inference of culpability to corroborate the child's hearsay statements. This issue has not been addressed in a published opinion by any court in this State.

This court holds that a Family Part Judge may not draw an adverse inference of culpability against a defendant who invokes his right against self-incrimination to refuse to testify at a Title 9 fact-finding hearing. This court also holds that defendant received ineffective assistance of counsel. The record shows defendant satisfied the two-prong standard established by the Supreme Court in Strickland v. Washington, 466 U.S. 688, 687 (1984), and adopted by the New Jersey Supreme Court in N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 311 (2007).

Jude Koblitz concurs in the result but does not agree that a parent is entitled to invoke the right against self-incrimination and decline to testify at a fact-finding hearing in an abuse or neglect matter. In Judge Koblitz's view, the parent's testimony may not subsequently be used by the prosecutor in a parallel criminal proceeding.

The court holds that if an attorney charges clients in LAD and other fee-shifting cases a fee based in whole or in part on an hourly rate, the attorney is ethically obligated to: disclose that the hourly rate-based fee could approach or exceed the client's recovery; provide examples of hourly rate-based fees in similar types of cases; and inform the client that other competent counsel represent clients in similar cases solely on a contingent fee basis.

Similarly, counsel who require clients to advance costs are ethically obligated to provide information about litigation costs such as deposition and expert fees, and provide examples of what costs have totaled in similar types of cases. An attorney is also ethically obligated to inform the client that other competent counsel who represent clients in similar cases advance litigation costs.

In these appeals, the panel considered whether fees imposed by defendant municipalities on multi-family rental property owners were solely for revenue generation as prohibited under Timber Glen Phase III, LLC v. Township of Hamilton, 441 N.J. Super. 514 (App. Div. 2015), or if they were reasonably related to the municipalities' exercise of their regulatory powers as authorized by statute. In Timber Glen, the court held that a municipality's license fee was ultra vires because "the power to regulate and to license, although related, are discrete" and that the power to regulate did not include the power to require a license and payment of a fee. However, the court noted that its "opinion [was] confined to the authority to license and [did] not address [a municipality's] regulatory or inspection authority granted by other statutes designed to assure rental premises remain safe, building and fire code compliant and structurally sound."

The trial court judges who considered the underlying matters in the present appeals dismissed plaintiffs' complaints after they found that the challenged ordinances were distinguishable from the ordinance invalidated in Timber Glen, as the fees were permissible under a municipality's regulatory powers in order to defray costs for the inspections or registration of rental units. The panel agreed with the trial court judges' conclusions but remanded for entry of an order directing that the reference to "license fees" be removed from the challenged ordinances to avoid any confusion.

By leave granted, the State appeals from the dismissal of second-degree false representations for a government contract, N.J.S.A. 2C:21-34(b), and second-degree theft by deception, N.J.S.A. 2C:20-4(a), charges in a multi-count indictment. The indictment alleged the New Jersey Department of Environmental Protection (NJDEP) entered into an Administrative Consent Order (ACO) with defendants in reliance on their misrepresentations concerning their financial condition and ability to operate a solar power generation facility on a landfill. The ACO authorized defendants' operation of the landfill and collection of millions of dollars in tipping fees and anticipated revenue from the solar power generation facility. The ACO required that defendants deposit portions of the fees and revenue in escrow for remediation of the landfill, but they failed to do so after entering into the ACO.

The trial court dismissed the count alleging second-degree false representations for a government contract, finding the ACO was not a government contract within the meaning of N.J.S.A. 2C:21-34(b) because it was not a contract for the procurement of goods and services. The trial court further dismissed the second-degree theft by deception charge, finding the contract did not have a value permitting the grading of the offense.

The court reverses, holding N.J.S.A. 2C:21-34(b)'s coverage is not limited to government contracts for goods and services, finding the ACO constitutes a government contract under the statute and determining there was sufficient evidence presented to the grand jury supporting the charge that defendants procured the ACO by making false representations to the NJDEP. The court also reverses the dismissal of the theft by deception charge, finding the evidence shows defendants procured contract rights – to operate the landfill and collect tipping fees and other revenue – that were worth millions of dollars and over which the NJDEP had a legal interest.

This is an appeal from the final decision of the Department of Community Affairs (DCA) that found appellant ineligible to receive two Superstorm Sandy recovery grants. The DCA awarded these grants to assist homeowners to remain in the county of their primary residence after the storm damaged their primary residence or to help them rebuild or repair their damaged primary residence. The DCA initially awarded appellant two grants totaling $85,000 based on his representation on the grant applications that his primary residence was a property he owned in Toms River.

The DCA thereafter found documentary evidence showing appellant's primary residence at the time of the storm was an apartment located in Hoboken and demanded that appellant refund the awards. The matter was transferred to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ). Appellant argued the DCA should have applied the common law concept of domicile to determine what his primary residence was at the time of storm. The ALJ issued an Initial Decision rejecting appellant's argument. The DCA Commissioner accepted the ALJ's findings and conclusions of law without modification.

This court affirms the Commissioner's decision. These grants were created to assist a class of property owners whose "primary residence" was damaged or destroyed by Superstorm Sandy. The grant applications contain a list of specific documents that the DCA uses to make the eligibility determinations. Replacing the straightforward criteria for eligibility established by the DCA with the common law concept of domicile would compromise the essential purpose of these relief programs and inject needless ambiguity into the eligibility determination process.

Plaintiffs challenged rule changes by made by the board of trustee of a common-interest community, claiming they were incompetent and thus not protected by the business judgment rule. Plaintiffs cited a case stating: "Courts will not second-guess the actions of directors unless it appears that they are the result of fraud, dishonesty or incompetence." Papalexiou v. Tower W. Condo., 167 N.J. Super. 516, 527 (Ch. Div. 1979). The Appellate Division disapproves this statement in Papalexiou, and reiterates that the business judgment rule protects an authorized action by a board from judicial scrutiny unless the plaintiff shows that the challenged "action is fraudulent, self-dealing or unconscionable." E.g., Seidman v. Clifton Sav. Bank, 205 N.J. 150, 175 (2011). Plaintiffs failed to carry that initial burden.

Plaintiffs Valerie Benning and I'Asia Moreland were a same-sex couple who lived together with Moreland's two biological children, a boy who was nearly five years old and his two-year-old sister. On January 30, 2009, Benning was standing on the sidewalk holding the hand of the two-year-old girl, when a fire truck collided with a pickup truck, causing the pickup truck to strike and kill the child. Plaintiffs filed a civil action against the tortfeasors that included a claim by Benning for negligent infliction of emotional distress under Portee v. Jaffee, 84 N.J. 88 (1980).

The Law Division granted defendants' motion for summary judgment and dismissed Benning's Portee claim, finding she did not present sufficient evidence that she had an "intimate, familial relationship" with the two-year-old. This court denied Benning's motion for leave to appeal. The Supreme Court granted Benning's motion for leave to appeal and summarily remanded this matter for this court to decide this issue.

As ordered by the Supreme Court, this court's analysis is exclusively focused on the second element of the four elements of proof required to bring a negligent infliction of emotional distress claim, as clarified and expanded in Dunphy v. Gregor, 136 N.J. 99 (1994). Viewing the evidence under the standard codified in Rule 4:46-2(c), this court holds that Benning presented sufficient evidence from which a jury could find that she and the two-year-old decedent had an intimate familial relationship at the time of the child's tragic death. This court reverses the Law Division's order dismissing Benning's claim as a matter of law and remands the matter for trial by jury.

The State appeals the trial court's dismissal of two Middlesex County indictments charging defendant with committing an armed robbery in Perth Amboy, conspiracy, and firearms possessory offenses. The court dismissed those charges because defendant had already pled guilty and been convicted in Monmouth County to having illegally possessed firearms in Asbury Park, weapons that were confiscated after the robbery in Perth Amboy occurred.

In particular, the victim of the robbery identified defendant as having brandished a silver or gray handgun and wearing a shoulder holster. Five days after the robbery, police officers executed a warrant for defendant's arrest issued by a judge in Middlesex County. The officers found defendant in a home in Monmouth County, along with two guns, one of which was silver or gray in color, and a shoulder holster.

The trial court reasoned that the Monmouth County and Middlesex County charges were sufficiently related to require them to be pursued in a single coordinated prosecution. Consequently, the court ruled the State's failure to combine the charges before the entry of the judgment of conviction in Monmouth barred his later prosecution in Middlesex.

The issues on appeal concern principles of mandatory joinder, double jeopardy, and continuing offenses. Applying those principles, the panel partially affirms the trial court's dismissal order with modification, reverses the order in part, and remand the matter for trial on certain counts of the indictments in Middlesex County. More specifically, and subject to certain caveats detailed in this opinion, the Middlesex prosecution on the armed robbery and conspiracy-to-rob counts is reinstated, but the weapons possession counts remain dismissed.

Plaintiff and her late husband's estate allege that defendant, a Division of Child Protection and Permanency contractor, negligently placed a dangerous child in the therapeutic foster home that plaintiff and her husband operated, and failed to warn them of the child's history of dangerous behavior. During the fifteen months following his removal from the home for misbehavior, the child illegally returned three times, ultimately killing the husband during a burglary. Reversing summary judgment to defendant, the panel holds that defendant owed a duty to the foster parents to exercise reasonable care in placing the child in their home, and to reasonably disclose the child's background to enable them to make an informed decision whether to accept him. Whether defendant breached that duty, and particularly whether that breach proximately caused the harm that followed, are jury questions on the record presented when viewed in a light most favorable to plaintiffs.

Judge Sabatino filed a concurring opinion, suggesting the State might utilize stringent regulations, contractual provisions requiring notification, or other measures and policies to avoid future repetition of the fatal tragedy that occurred in this case.

The court addressed the arson statute, N.J.S.A. 2C:17-1, and the rule against multiplicity, which prohibits the State from charging a defendant with multiple counts of the same crime, when that defendant's alleged conduct would only support a conviction for one count of that crime. The court held that when a defendant sets one fire, it is improper for the State to charge that defendant with multiple counts of arson based on the number of victims who were endangered by the fire. The court affirmed defendant's conviction for one count of second-degree arson, and for that conviction, the court affirmed the extended term sentence of twenty years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court reversed defendant's remaining ten arson convictions and vacated the sentences imposed for those convictions.

In this appeal, this court determines that a municipality may not condition the grant of tax abatements pursuant to the Long Term Tax Exemption Law (LTTEL), N.J.S.A. 40A:20-1 to -22, upon the redevelopers paying two million dollars through Prepayment Agreements. These payments were characterized as "a portion" of the Annual Service Charge the redeveloper would pay in lieu of property taxes after the project was completed. This court thus affirms the part of the judgment entered by the Law Division that declared the Prepayment Agreements ultra vires and ordered the municipality to refund the two million dollars to the redeveloper.

This court also determines that pursuant to the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -73, a municipality may require the redeveloper to contribute to an Affordable Housing Trust Fund (AHTF) established by the municipality as a condition for granting a tax abatement under the LTTEL. N.J.S.A. 40A:12A-4.1. This court thus reverses the decision of the Law Division that ordered the City to return to the redeveloper a combined $710,769 initial contribution it made to the municipal AHTF, as a condition for the municipality granting the tax abatement under the LTTEL.