Opinion Summaries

The UFL does not authorize an affirmative cause of action against a bank but rather provides a bank with a limited immunity from liability for failing to take notice of and action on the breach of a fiduciary’s obligation. The UFL does not displace, subsume, or supplement common law claims. When an action is brought against a bank, the UFL provides that a bank’s liability depends on whether the bank acted with actual knowledge or bad faith in the face of a fiduciary’s breach of his obligations. Whether a UFL claim was adequately pled in this case is therefore a moot issue. And, recognizing the predominant role the UCC plays in assigning liability for the handling of checks, the Court also finds that Lembo had no “special relationship” with the bank to sustain the common law causes of action

A resident of a rooming house was stabbed to death by another resident. The assailant had recently been released from prison for a violent crime, although the rooming house owner and operator were not aware of that criminal history.

The decedent's estate brought a wrongful death and survival action against the rooming house owner and operator, arguing they had a duty to conduct a criminal background check before allowing the assailant to reside on the premises. The Law Division judge rejected that argument, and granted summary judgment to the defendants.

The court affirms, agreeing with the motion judge that the owner and operator of a New Jersey rooming house have no statutory or common-law duty to conduct criminal background checks of prospective new residents.

No statute or regulation in the State or opinion from another state has recognized such a duty. The imposition of such a duty also could have significant pubic ramifications.

Defendant was convicted of first-degree kidnapping, conspiracy to kidnap,and felony murder, and sentenced to a sixty-year prison term. In her appeal, defendant raised numerous issues regarding her convictions as well as the sentence imposed.

The court first agreed that the jury's verdict could only be understood as supporting a conviction of second-degree kidnapping, not first-degree kidnapping for which she was sentenced, because the jury was not asked to determine whether defendant "release[d] the victim unharmed and in a safe place prior to apprehension."N.J.S.A. 2C:13-1(c)(1). The court, however, rejected defendant's argument that a new trial was required, holding instead, in accord with State v. Casilla, 362 N.J. Super. 554 (App. Div. 2003), that the verdict simply had to be molded to reflect a conviction of second-degree kidnapping.

Second, while the molding of the kidnapping conviction required resentencing, the court also mandated resentencing – and before a different judge – because the judge based the sentence on his declaration, based on his own understanding of the evidence, that defendant "ordered [the victim's] execution" even though the jury acquitted defendant of both first-degree murder and conspiracy to commit murder. The court held that, while federal constitutional principles may permit an enhancement of a sentence based on conduct for which the defendant was acquitted, see United States v. Watts, 519 U.S. 148 (1997), New Jersey constitutional principles do not. Because an acquittal means the State failed to overcome the accused's presumption of innocence – leaving the accused's innocence "established," State v. Hill, 199 N.J. 545, 559 (2009) – the sentencing judge here violated defendant's due process rights and her right to trial by jury by disregarding the jury's acquittal verdict and enhancing the sentence because of his personal own view of the evidence.

An intrusion on privacy occurs when someone uses a private space where a spying device has been concealed and “the intrusion would be highly offensive to a reasonable person.” Restatement (Second) of Torts § 652B. To bring a claim, the victim does not have to present direct evidence that she was secretly recorded. She can instead establish a case of intrusion on seclusion based on reasonable inferences drawn from the evidence. Here, however, there was not enough evidence in the summary judgment record to demonstrate, either directly or inferentially, that the plaintiffs who were dismissed used bathrooms with cameras in them during the relevant time period.

This appeal requires the court to determine whether the assignment judge correctly granted defendant's motion to overrule the State's rejection of his petition for a Graves Act waiver pursuant to N.J.S.A. 2C:43-6.2, "which embodies the so called 'escape valve' to the mandatory sentence requirements otherwise embodied in the Graves Act," N.J.S.A. 2C:43-6(c). State v. Alvarez, 246 N.J. Super. 137, 139 (App. Div. 1991). In granting defendant's application, the assignment judge concluded that based on the disparity in the prosecutor's treatment of similarly situated defendants and the discrepancy in the State's assessment of defendant's criminal record, defendant demonstrated "'arbitrariness constituting an unconstitutional discrimination or denial of equal protection' in the prosecutor's decision," State v. Benjamin, 228 N.J. 358, 372 (2017) (quoting Alvarez, 246 N.J. Super. at 148), that fell within the Alvarez proscription. The judge explained that while Benjamin precluded defendants challenging the denial of a Graves Act waiver from obtaining discovery of prosecutorial decisions in cases other than their own, as the judge responsible for reviewing all waiver cases, he was in the best position to determine whether the Alvarez standard had been violated. The court affirms the judge's decision and rejects the State's challenge. The court is satisfied that the judge's robust review and analysis were sound, and fulfilled the role contemplated in Benjamin, to "ensure[] that prosecutorial discretion is not unchecked." 228 N.J. at 373.

Plaintiff commenced this collection action in July 2009, and in 2010 obtained a default judgment that defendant did not seek to vacate, under Rule 4:50, until 2018. The trial judge conducted an evidentiary hearing and found plaintiff's claim accrued no later than March 2004 – more than four years before the complaint was filed – meaning the action was time-barred when filed, N.J.S.A. 12A:2-725(1), and plaintiff's filing of the action violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 – 1692p. The judge, however, also determined that defendant's failure to respond to the complaint or plaintiff's post-judgment collection efforts was inexcusable. Balancing these circumstances, the trial judge concluded defendant was entitled to relief from the judgment and dismissal of the complaint.

In affirming, the court held that the judge's decision to vindicate the federal policy in favor of curbing "abusive debt collection practice" rather than the state interest in the finality of judgments was not an abuse of discretion.

In these appeals, the court holds, as a matter of first impression, that a valid grand jury subpoena is sufficient to obtain prescription drug information maintained in New Jersey's Prescription Monitoring Program (PMP) when law enforcement personnel are investigating a prescriber.

Plaintiff filed a complaint against defendants Millville and its police department under OPRA, N.J.S.A. 47:1A-1 to -13, seeking copies of DWI/DUI, drug possession, and drug paraphernalia summonses and complaints issued by Millville police officers. The trial judge granted relief but the court reversed. The court observed that the creation of a complaint-summons starts with a police officer – at the direction of the Attorney General – inputting information into an electronic system created and maintained by the Administrative Office of the Court. Once completed, the complaint-summons is retained by the municipal court, whose authority falls under the aegis of the judiciary. The court therefore held that the municipality and its police department are not the custodians of these records and they could not be compelled to search for and turnover these records in response to an OPRA request.

Defendants appeal the Chancery Division's denial of their motion to vacate a default judgment of mortgage foreclosure. Defendants' house was severely damaged by Superstorm Sandy, and they ceased paying their mortgage loan.

Defendants filed a federal lawsuit against their flood insurance company and homeowners' insurer policies, seeking payment for the storm damage. They named the mortgage holder as a co-defendant, claiming the storm extinguished their obligation to pay the mortgage. The federal court dismissed the complaint against all three defendants.

The mortgage holder's successor then filed the present state-court foreclosure action. Defendants defaulted and final judgment was entered against them. Defendants argue the foreclosure action was barred under the Entire Controversy Doctrine, because the mortgagee had the opportunity to file a counterclaim for foreclosure in the previous federal action.

This court affirms the Chancery judge's ruling that the foreclosure action was not barred by the Entire Controversy Doctrine.

The federal case seeking insurance payments lacked a sufficient nexus to the mortgage to preclude the foreclosure case. In addition, the mortgage holder's contractual right to direct the use of any insurance proceeds does not eliminate the mortgage debt or the right to foreclose on the defaulted loan.

Viewing the trial record in its entirety, the detective’s testimony, in context, did not compel the inference that he had superior knowledge incriminating defendant from a non-testifying witness. The testimony therefore did not violate defendant’s confrontation right or the hearsay rule. Although there was no abuse of discretion in the admission of the testimony here, the Court cautions against using the phrase “based on the evidence collected” in this context and provides guidance as to curative instructions

This matter was before the court on applications filed by both parties seeking relief concerning child support and custody. In its written opinion, the court addressed the issue of whether, for purposes of calculating child support, the court may find a parent to be underemployed, and impute to that parent income based on available overtime, where the available overtime is greater than the amount of overtime the parent had worked in the past.

The court held that a parent was not “voluntarily underemployed” for not working all available overtime, without regard to past practices. The court held that for purposes of calculating child support, the parent’s income is his or her salary plus an additional amount based on past earnings from overtime and second jobs.

This non-dissolution case addresses whether partition of a residence remains an equitable remedy among unmarried, cohabitating intimates engaged in a joint venture following 2010 amendments to the Statute of Frauds – a question of first impression.

In 2010, the Statute of Frauds was amended to extend its writing requirement to any “promise by one party to a non-marital personal relationship to provide support or other consideration for the other party.” N.J.S.A. 25:1-5(h). Although the amendment clearly made unwritten palimony agreements unenforceable, no published opinion has yet addressed whether, in the absence of a writing, the equitable remedy of partition among unmarried, cohabitating intimates survived.

Here, although the deed and mortgage to the home were in S.R.’s name only, C.N. was heavily involved in the home’s purchase by, among other things: communicating with the realtor; providing $10,000 of the $15,000 down payment; being solely responsible for the inspection; negotiating a $10,000 seller’s concession; and being a named insured. Once in the home, although S.R. largely paid the monthly mortgage, C.N. was responsible for the majority of the home’s upkeep costs, such as gas, electric, water, sewer, security, landscaping services, garbage, and pest control. He oversaw contractors. He purchased furniture. And, he worked with a lawyer to appeal a tax assessment.

After reviewing pre-amendment precedent, the plain text of the statutory amendment that used palimony language from a precedential Appellate Division opinion, and the legislative history undergirding enactment of N.J.S.A. 25:1-5(h) – legislative history that expressly discussed palimony caselaw, yet was silent as to partition – the court holds that, in the absence of a writing, partition of a residence remains an equitable remedy among unmarried, cohabitating intimates engaged in a joint venture.

The court affirms the dismissal without prejudice of a Special Civil Part suit to recover unpaid legal fees based on plaintiff's failure to provide defendants' attorney with a copy of the pre-action notice required by Rule 1:20A-6 referenced in the complaint in response to his written demand in accordance with Rule 4:18-2.

The biological mother of two children appeals from the Judgment of Guardianship entered by the Family Part terminating her parental rights to her two sons. The judge assigned to manage this case made the decision to terminate appellant's parental rights after conducting a one-day trial in which she was not present nor represented by counsel. At the first case management conference, appellant complained to the judge about her inability to communicate with the attorney assigned by the Public Defender – Office of Parental Representation (OPR). Without a formal motion or prior notice to appellant, the judge granted OPR counsel's oral application to be relieved as counsel of record for appellant. The judge thereafter told appellant she had only two options: (1) retain private counsel or (2) proceed without a lawyer

This court holds the Family Part violated appellant's constitutional and statutory right to be represented by competent counsel. The trial judge's response to appellant's dissatisfaction with her assigned OPR counsel is irreconcilable with the approach the Supreme Court established in N.J. Div. of Child Prot. & Perm. v. R.L.M. (In re R.A.J.), 236 N.J. 123, 149-51 (2018). This court vacates the Judgment of Guardianship against appellant, and remands for the matter to be tried before a different judge.

This court holds the Family Part violated appellant's constitutional and statutory right to be represented by competent counsel. The trial judge's response to appellant's dissatisfaction with her assigned OPR counsel is irreconcilable with the approach the Supreme Court established in N.J. Div. of Child Prot. & Perm. v. R.L.M. (In re R.A.J.), 236 N.J. 123, 149-51 (2018). This court vacates the Judgment of Guardianship against appellant, and remands for the matter to be tried before a different judge.

Executive Order 124 creates a sufficient expectation of eligibility for release through a furlough program to call for certain due process protections. The Court adds to the Executive Order the protections summarized on pages 6 to 7 and detailed on pages 33 to 36 of the opinion to comport with due process. The Court also notes that inmates may challenge the DOC’s action, a final agency decision, by seeking review before the Appellate Division. The agency’s decision is entitled to deference on appeal. Individual inmates may also seek relief independently under Rule 3:21-10(b)(2). They do not have to exhaust the remedies available under the Executive Order before they may file a motion in court. As to sentences imposed on juveniles who are in the custody of the Juvenile Justice Commission (JJC), those individuals may seek relief from the court on an individual basis. To the extent the opinion calls for trial judges to rule on motions and the Appellate Division to review agency decisions, the Court exercises its supervisory authority to require that applications be heard and decided in a matter of days and urges the Commissioner and the Parole Board to act as expeditiously as possible.

Defendant pleaded guilty to two counts of violating N.J.S.A. 2C:40-26(b) by driving during a period of license suspension or revocation for a second or subsequent violation of N.J.S.A. 39:4-50, driving while under the influence, or N.J.S.A. 39:4-50a, refusal to provide a breath sample. The court sentenced defendant on each count to a 180-day term of imprisonment with a 180-day period of parole ineligibility as a condition of serving a two-year probationary term. The court ordered the custodial terms to be served consecutively and the probationary terms to be served concurrently.

Defendant argued his sentences are illegal because the Criminal Code does not authorize a spilt sentence with a term of imprisonment that includes a mandatory period of parole ineligibility. The court disagreed, finding the plain language of N.J.S.A. 2C:43-2(b)(2) authorizes sentences including terms of incarceration as a condition of probation, with the only limitation being the term of incarceration may not exceed 364 days. The court finds that because defendant's individual and aggregate custodial sentences require less than 364 days of imprisonment as a condition of probation, they are authorized by N.J.S.A. 2C:43-2(b)(2) even though the terms of imprisonment include mandatory periods of parole ineligibility.

The court also determined the sentencing court erred by failing to make findings supporting its imposition of consecutive sentences, see State v. Yarbough, 100 N.J. 627 (1985), and by imposing sentences that were both consecutive and concurrent, see State v. Rogers, 124 N.J. 113 (1991). The court remanded for resentencing.

In affirming defendant's conviction for murdering his former girlfriend, the court clarifies that evidence that satisfies a hearsay exception, such as defendant's prior threat to the victim, admissible as a statement of a party opponent, N.J.R.E. 803(b)(1), must also overcome the exclusion of other crimes, wrongs, and acts evidence under N.J.R.E. 404(b), as well as satisfy N.J.R.E. 403. The trial court mistakenly concluded that meeting the hearsay exception provided an independent basis for admitting the prior statement.Notwithstanding that mistake, the appellate court affirms the conviction, because the hearsay statement satisfied the Rule 404(b) test set forth in State v. Cofield, 127 N.J. 328, 338 (1992). In particular, its probative value as evidence of motive was not outweighed by its apparent prejudice.

Tax Court: Carmine Paul, Executor v. Director, Division of Taxation; Docket No. 000307-2016, opinion by Nugent, J.T.C., decided June 2, 2020. For plaintiff – Thomas M. Wolfe (Wolfe Ossa Law, attorneys); for defendant – Heather Lynn Anderson (Gurbir S. Grewal, Attorney General of New Jersey, attorney).

Decedent formed an irrevocable inter vivos trust in June 2007, funded with cash and securities, naming himself and his son-in-law, Carmine Paul, as trustees. By the terms of the Trust Indenture the trustees were required to pay to Decedent the net income from the trust on a quarterly basis. Trustees had the discretion to distribute principal to the beneficiaries in an amount limited by the trust, but Decedent was not entitled to any distribution of trust principal. At Decedent’s death, the remaining trust property was to be distributed to the beneficiaries named in the Trust Indenture. Prior to his death Decedent suffered a stroke and Carmine Paul assumed the role of trustee. Decedent continued to receive net income distributions from the trust until his death in 2013. After Decedent’s death Defendant audited the New Jersey Resident Decedent Inheritance Tax return and included in Decedent’s estate the value of the trust. Defendant found that Decedent had reserved a life estate in the trust income and assessed inheritance tax on the assets under N.J.S.A. 54:34-1(c) as a transfer “intended to take effect in possession or enjoyment at or after . . . death.” In challenging the tax, Plaintiff claimed that because the trust authorized the trustees to distribute principal to the beneficiaries on a discretionary basis, Decedent never retained a life estate in the property since the trustees could have drained the trust principal. Moreover, Plaintiff claimed the court should apply N.J.S.A. 54:34-1.1 to exempt the property from tax. The court finds that neither the statutes nor the case law provides support for Plaintiff’s claim. The facts fit within the plain text of the statutes, where Decedent reserved an interest in the property transferred for a period measured by Decedent’s life. Moreover, N.J.S.A. 54:34-1.1 requires that a Grantor who retained an interest in the property transferred must execute in writing a complete disposition of the property interest more than three years prior to death. Plaintiff failed to meet his burden of proof to establish that the transfer was outside the reach of the “at or after death” provision of the statute or that Decedent executed a timely and complete disposition of his interest in the property. Accordingly, the court grants Defendant’s motion for summary judgment affirming the assessment.

Defendant pled guilty during trial to aggravated manslaughter. The victim was the boyfriend of his former girlfriend and mother of his daughter. The State introduced text messages defendant sent to her shortly before the homicide, alleging they were threatening and demonstrated defendant's jealous nature. Defendant moved pretrial to suppress the messages seized from her cellphone. Although the State asserted that police obtained consent before searching the phone, it objected to any evidentiary hearing on the issue, arguing that defendant lacked a reasonable expectation of privacy in those text messages and the requisite standing to challenge the search. Without holding an evidentiary hearing, the judge agreed with the State and denied the motion.

The court affirms, concluding that defendant had no reasonable expectation of privacy in the text messages once they were sent and received on another's phone, and that defendant lacked standing to challenge the search because he had no "proprietary, possessory or participatory interest in either the place searched or the property seized." State v. Randolph, 228 N.J. 566, 571 (2017) (quoting State v. Alston, 88 N.J. 211, 228 (1981)).

As the Court explained in Borough of Saddle River v. 66 East Allendale, LLC, evidence that risks misleading the jury into assuming a zoning variance for purposes of calculating a property’s value must not be admitted absent a judicial finding it is reasonably probable that the variance will be obtained. 216 N.J. 115, 142 (2013). Therefore, the trial court erred by allowing the jury to consider testimony that the highest and best use of the subject property would require a variance without first confirming the probability of securing that variance.