Published Appellate Court Opinions

In this appeal, the court addresses two post-judgment orders in this palimony case between plaintiff Lisa Greebel and defendant Michael Lensak. The parties never married, but shared a long-term, romantic relationship from approximately 2000 to 2013. During this time, the parties purchased a home, cohabitated, and raised their daughter, born in 2001.

In 2005, plaintiff obtained legal advice from attorney Vincent Celli about her right to financial support from defendant if the parties ever ended their relationship without marrying. Using a different attorney, plaintiff filed a palimony suit in 2014. The case settled in 2018. One year later, Mr. Celli filed a motion for defendant to vacate the final judgment pursuant to Rule 4:50-1, re-open discovery, and set aside the parties' settlement agreement. Plaintiff filed a cross-motion to disqualify Mr. Celli and his firm from representing defendant, alleging the 2005 consultation created a disqualifying conflict.

The court affirms the disqualification of the Celli firm and the dismissal without prejudice of defendant's motion to vacate the final judgment; however, we reverse the provision sealing and barring further use of the motion pleadings.

In this motor vehicle negligence case, defendant Roland Williams, a driver for defendant ABF Freight System, Inc., rear-ended plaintiff Ahmed Hassan, a driver for FedEx. A defense expert opined that Hassan cut in front of Williams at a slow speed. The jury found both drivers negligent, but Hassan slightly more so, and the court entered a no cause judgment.

On appeal, the court holds that the trial judge erroneously excluded statements by ABF officials that Williams could have prevented the accident, he drove recklessly, and he violated ABF safety protocols. These were all statements of a party opponent. N.J.R.E. 803(b). The judge's reasoning that the statements should be excluded because they went to the "ultimate issue" was at odds with N.J.R.E. 704. The judge correctly excluded evidence that ABF discharged Williams, but he did so for the wrong reason; it was inadmissible because it was a subsequent remedial measure under N.J.R.E. 407. However, the investigatory finding that led to the discharge decision was not a subsequent remedial measure. Also, the probative value of the ABF officials' statements was not substantially outweighed by the risk of undue prejudice, confusion of the issues, or misleading the jury. Given the closeness of the jury's comparative negligence findings, the trial court's mistaken exclusion of the statements warrants a new trial.

Gannett Satellite Information Network, LLC, which publishes the Asbury Park Press, brought an action to compel the Township of Neptune to disclose the Internal Affairs (IA) file of Philip Seidle, who had been a Sergeant in the Township's Police Department. In June 2015, Seidle shot and killed his ex-wife using his service revolver, while off-duty.

The trial court determined that Gannett was not entitled to access to the records under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, but found, after consideration of the relevant factors under Loigman v. Kimmelman, 102 N.J. 98 (1986), that Gannett was entitled to access to the records under the common law. The trial court also awarded Gannett attorney's fees for the successful pursuit of its claim under the common law. The trial court stayed its judgment pending appeal.

The Township appealed, and Gannett cross appealed, from the trial court's judgment. While the appeal and cross appeal were pending, the Attorney General (AG) ordered public disclosure of Seidle's IA file pursuant to the AG's Internal Affairs Policy and Procedures (IAPP).

We held that the trial court correctly decided that Gannett was not entitled to access to the records under OPRA, and Gannett was entitled to access under the common law. We also held that although attorney's fees can be awarded to a plaintiff that prevails on a claim under the common law right of access, an award of attorney's fees to Gannett was not warranted under the circumstances.

Defendant sought relief from a final default judgment of foreclosure of a tax sale certificate, so it could redeem its property. In denying relief, the trial court cited the tax sale certificate's validity, and defendant's failure to ensure its taxes were paid. But, under the Tax Sale Law, an owner need not challenge the tax sale certificate, nor excuse its own past non-payment, before redeeming its property. Defendant presented compelling reasons for its failure to answer the foreclosure complaint; defendant promptly moved to vacate the default judgment; and it was prepared to redeem the property. Based on those exceptional circumstances, the trial court should have exercised its broad equitable power under Rule 4:50-1(f) and granted defendant relief from the judgment. Therefore, the appellate court reversed the trial court's order.

In this construction site accident case, the court addresses an unresolved question of New Jersey law: When is an Affidavit of Merit ("AOM") under N.J.S.A. 2A:53A-27, supporting claims against a licensed professional, due in situations where a plaintiff’s original complaint is later amended and additional answers or other pleadings are filed?

Plaintiffs served AOMs (one from an engineer and another from an architect) more than 120 days after the defendant engineering firm filed its answer to the original complaint, but before that firm answered an amended complaint naming another defendant.

Relying in part on several federal decisions interpreting New Jersey law, the motion judge ruled the deadline for an AOM "does not come into play until the pleadings are [all] settled." Based on that reasoning, the judge deemed timely the two AOMs tendered by plaintiffs more than a year after the engineering firm had filed its original answer and first amended answer.

Declining to adopt the federal approach, this court holds the AOM statute's text and legislative purposes require the affidavit to be served within 60 days (extendable for good cause to 120 days) from the date when the licensed professional files its answer, regardless of whether the pleadings are subsequently amended to name other defendants or assert additional claims. That deadline is subject, however, to the long established AOM exceptions for (1) substantial compliance or (2) extraordinary circumstances.

This appeal raises novel questions concerning the scope of the duty owed to an adult who is not old enough to drink legally but who nonetheless drinks alcohol to excess and injures himself in a motor-vehicle accident. Plaintiff, when he was a twenty-year-old college student, attended a social gathering in a suite in a university's residential hall. He had planned to spend the night in the suite and fell asleep after becoming visibly intoxicated. He later awoke, left the suite, and was injured when a car he was driving went off the road. No one saw plaintiff leave the suite

Plaintiff and his parents appeal from a series of orders that granted summary judgment to the University, four student residential assistants (RAs), four student suitemates (the Suitemates), and three other students who attended the gathering as guests. Plaintiff contends that the University and the students had a duty to take action that would have prevented him from driving while drunk. The court holds that certain defendants had no duty, while the duty of other defendants, and a related causation issue, present questions of fact for a jury to resolve.

The three student guests had no duty to monitor the actions of plaintiff. Any duty of the Suitemates ended when plaintiff fell asleep with the plan to spend the night in the suite. The University and its student RAs are protected by the Charitable Immunity Act (CI Act), N.J.S.A. 2A:53A-7 to -11, which shields them from claims based on simple negligence. There are disputed issues of material fact concerning whether the RAs were grossly negligent or acted with willful or wanton indifference in failing to enforce the University's policies prohibiting underage drinking. There is also a related disputed issue of material fact concerning whether any breach by the RAs caused plaintiff's injuries. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings.

In 2018, after the New Jersey Legislature passed the Global Warming Response Act, N.J.S.A. 26:2C-37 to -68, having declared that it was in the State's interest to reduce greenhouse gas emissions, the Legislature enacted a Zero Emission Certificate (ZEC) program for eligible nuclear power plants, L. 2018, c. 16, codified at N.J.S.A. 48:3-87.3 to -87.7 (the ZEC Act). The purpose of the ZEC Act is to subsidize nuclear power plants at risk of closure, helping them to remain operational despite competition from other carbon-emitting power sources, to further New Jersey's clean energy goals.

After the municipality painted white lines on a paved area, defendant painted over the lines with black paint and then painted a new white line. She claimed the paved area was a "parking bay" on her property; the municipality claimed it was a public street.

In a trial de novo, the Law Division convicted defendant of violating a municipal ordinance that prohibited a person from unnecessarily obstructing "any . . . street, or public place in the [municipality] with any kind of vehicle, boxes, lumber, wood, or any other thing[.]"

Without addressing the property-ownership issue, the court perpended the plain-language meanings of "obstruct" and considered two Law Division decisions—one by then-Judge Virginia A. Long—interpreting that term as used in the statute prohibiting obstruction of highways and other public passages, N.J.S.A. 2C:33-7. Because defendant's actions did not block or otherwise impede passage, the court concluded she did not violate the ordinance and reversed her conviction.

Petitioner challenged a final agency decision of the Acting Director, Division of Medical Assistance and Health Services finding her eligible for Medicaid benefits but: (1) imposing a penalty of $496,333.33 for the value of the one-third interest in her home she transferred to her son during the five-year look - back period " established in N.J.A.C. 10:71-4.10; and (2) directing that the penalty be increased by the value of a life estate in the home she relinquished to her son at time of the transfer. The court reversed the Acting Director's decision, finding the transfer of both interests in the property to be exempt from the penalty under the child caregiver exemption established in N.J.A.C. 10:71-4.10(d)(4). The regulation has not been previously construed in a published opinion.

The exemption applies to a Medicaid applicant's transfer of an interest in her home to a child who has lived in the home for a minimum of two years and provided assistance to the applicant beyond that normally expected of a child and which delayed the parent's institutionalization. The Acting Director found the exemption did not apply because petitioner's son: (1) worked full-time outside the home four days a week; (2) did not establish that the assistance he provided to his mother before work, after work, overnight, and during the day when he was not working delayed her institutionalization; (3) used petitioner's funds to pay for home healthcare aides when he was working; and (4) did not prove his claim to have reduced his work hours when his mother's dementia progressed.

The court found that the Acting Director misapplied the regulation, given the substantial evidence in the record that petitioner's son provided assistance beyond that normally expected of a child, including bathing, clothing, feeding, toileting, and medicating petitioner daily, as well as monitoring her overnight wandering and other needs. In addition, the court held that a child's full-time employment and use of home healthcare aides paid with petitioner's funds did not negate the exemption, as the regulation did not require that a child devote his full-time and own funds to caring for his parent to qualify for the exemption. The court held that it is the qualitative nature of the care provided by the child and the resulting delay in institutionalization that are relevant to applicability of the exemption.

Following a bench trial, the judge concluded defendant 1 Memorial Drive, LLC, was the successor of defendant Amma, Corp., and entered judgment in favor of plaintiff, Amma's landlord, for unpaid rent for the balance of the lease extension. The judge concluded exceptions to the general rule that a transferee is generally not liable for the debts of the transferor, see Woodrick v. Jack J. Burke Real Estate, Inc., 306 N.J. Super. 61, 72–73 (App. Div. 1997), applied, even though he found that the only asset Amma transferred was a trademarked name, Super Supermarket. The judge made no finding as to the actual value of the trademark, which 1 Memorial had been using for nearly one year and which several other supermarkets in New Jersey used. Nevertheless, using his personal knowledge of other businesses in the city, and their recognizable business names, the judge found successor liability.

Citing several cases from other jurisdictions and treatises, the court concluded that the transfer of all or substantially all of the predecessor entity's assets is a predicate to any finding of successor liability as to the successor entity. In this case, the substantial credible evidence supported a finding that the transfer of a generic trademark was of limited value, and plaintiff failed to prove that Amma transferred any, much less all or substantially all, of its assets to 1 Memorial. The court reversed and vacated the judgment.

In this accelerated appeal arising from a municipal clerk's rejection of an initiative petition to move the school board and municipal elections to the date of the November general election, the court held that the municipal clerk violated the Faulkner Act, N.J.S.A. 40:69A-184 to -192, by repeatedly refusing to certify and file the initiative petition due to perceived minor technical noncompliance. The court also held that the municipal clerk's actions violated the right of initiative petition guaranteed by the Faulkner Act, thereby depriving the petitioners of a substantive right protected by N.J.S.A. 10:6-2(c) of the New Jersey Civil Rights Act, and entitling them to an award of reasonable attorney's fees and costs under N.J.S.A. 10:6-2(f).

This appeal requires us to determine if a police officer employed in a non-civil service municipality can be subpoenaed to testify in the municipality's case-in-chief at a departmental disciplinary hearing seeking his termination. The court concludes the subpoena violates neither fundamental fairness and due process nor statutory procedures governing discipline of a police officer in a non-civil service municipality. The court further concludes that absent an objection to a specific question, it is premature to determine whether there is a violation of the officer's Fifth Amendment constitutional right against self-incrimination. Accordingly, the court affirms the Law Division order granting the municipality's request to enforce the subpoena.

Plaintiff, the managing association for a high-rise condominium building, obtained monetary judgments by default against two companies involved in construction and inspection of the condominium building. Alleging the companies were insured under insurance policies issued by defendant, plaintiff filed a declaratory judgment complaint seeking coverage. Plaintiff appeals the Law Division order that dismissed its declaratory judgment complaint and required it to arbitrate its claim for insurance coverage.

The court reversed the order. Under the direct action statute, N.J.S.A. 17:28-2, plaintiff can sue defendant directly for coverage under the insurance policies when there is evidence the insureds are bankrupt or insolvent. However, plaintiff did not assent to the arbitration clause in the policy and therefore, it is not required to arbitrate its claims. The court reinstated the declaratory judgment complaint and remanded for further proceedings.

Plaintiff Robert Triffin appeals from an order denying his motion for reconsideration of an order, entered after a Special Civil Part trial, that dismissed his action against defendants SHS and John Sickles. Defendant SHS, a hair styling school, issued a check to one of students, codefendant Amanda Grzyb-Kelly, for living expenses. Grzyb-Kelly did not file an answer, and the judge entered default judgment against her at the conclusion of trial. Grzyb-Kelly cashed the check twice on the same day, first by electronically depositing it into her account at Wells-Fargo using photos of the front and back of the check through an application on her phone, then at United Check Cashing where it was indorsed, marked with a dated stamp, and exchanged for payment. The check was dishonored when United Check Cashing presented it for payment at defendant's bank, Bank of America. Plaintiff subsequently purchased the dishonored check, along with several others, through an assignment agreement.

Plaintiff filed a complaint pursuant to N.J.S.A. 12A:3-414(b), which entitles the holder of a dishonored check to enforce payment against the drawer. The trial judge found that N.J.S.A. 12A:3-308(b) provided a defense to plaintiff's right to payment based on the evidence that defendant had previously paid the check. Specifically, after reviewing both parties' copies of the check, the judge noted that the electronically deposited check into Wells-Fargo lacked an indorsement, whereas the check cashed at United Check Cashing was indorsed and physically relinquished. Accordingly, the court dismissed the complaint against SHS and Sickles.

In his motion to reconsider, plaintiff argued that because the check was not indorsed, negotiation and transfer, as required by N.J.S.A. 12A:3-201(b) and -203 (c), did not occur. Rather, plaintiff argued, defendant's bank made an illegitimate payment that did not satisfy defendant's obligation to pay. On reconsideration, the trial judge relied, in part, on N.J.S.A. 12A:3-414(c) and concluded the defendant's obligation to pay was discharged. N.J.S.A. 12A:3-414(c) states: "If a draft is accepted by a bank, the drawer is discharged, regardless of when or by whom acceptance was obtained." Similar to a certified check, "acceptance" in this context refers to a process by which a bank guarantees payment of a draft, N.J.S.A. 12A:3-409(a); the statute does not use the term in its colloquial sense.

The court found that N.J.S.A. 12A:4-205 eliminates the indorsement requirement for negotiation and transfer if the customer of a depository bank delivers an item for collection. Because Grzyb-Kelly was a customer of Wells Fargo, the depository bank in this case, the unendorsed check was effectively negotiated and transferred when she made the electronic deposit. Indorsement was not required. The court affirmed the trial judge's finding that defendant had successfully proved his previously paid defense.

Affirmed.

The Commissioner of Education determined that a board of education could use unemployment benefits and payments from other employment that plaintiff, a tenured teacher, had received during a tenure-charge suspension period to offset outstanding back pay owed to him. Finding that N.J.S.A. 18A:6-14, by its express language, authorizes a board to deduct "sums" the suspended teacher had received "by way of pay or salary from any substituted employment," the court held that unemployment benefits are not "sums" received "by way of pay or salary from any substituted employment" and the Commissioner erred in finding the board could deduct unemployment benefits from the back-pay award. Thus, the court reversed the portion of the Commissioner's final administrative decision regarding unemployment benefits. The court affirmed the Commissioner's determination that plaintiff's other employment constituted "substituted employment" and that the board could use payments from that substituted employment to offset any back pay owed to plaintiff.

In this appeal, which consolidates eight cases, the court addressed the criteria for admission to Drug Court, which is a nationally acclaimed program that combats the hopelessness of addiction with the hopefulness of treatment. Defendants are admitted via two separate and distinct "tracks." A Track One defendant can only be admitted if he or she meets all of the eligibility criteria for special probation set forth in N.J.S.A. 2C:35-14(a). For Track Two candidates, the criteria enumerated in N.J.S.A. 2C:35-14(a) are relevant considerations but are not prerequisites to admission. The court ruled that a defendant is a Track One candidate if, and only if, a present offense for which he or she is to be sentenced is subject to the presumption of imprisonment set forth in N.J.S.A. 2C:44-1(d) or to a mandatory term of parole ineligibility. The court rejected the State's contention that a defendant is a Track One candidate because he or she has previously been convicted of a crime subject to the presumption of imprisonment or has previously been sentenced to State prison. The court also held that once it is determined that a defendant is legally eligible for Drug Court, the decision to grant or deny admission rests in the discretion of the sentencing court and that decision is entitled to substantial deference in view of the specialized expertise, training, and experience of Drug Court judges

Plaintiffs challenged Jersey City's adoption of a payroll tax ordinance that exempted from its calculation the "total remuneration" employers paid to Jersey City residents, and included in the calculation remuneration paid to employees who worked outside the city but were supervised by an employee in the city. Amendments to the Local Tax Authorization Act, N.J.S.A. 40:48C-1 to -42 (LTAA) in 2018 permitted the exemption of local residents and authorized the use of payroll tax revenue to augment Jersey City's loss of state educational aid resulting from 2018 amendments to the School Funding Reform Act of 2008 (SFRA), N.J.S.A. 18A:7F-43 to -63. Jersey City was the only municipality that satisfied the statutory requirements. The Law Division judge upheld the constitutionality of the ordinance and amendments to the LTAA and dismissed the complaint.

The court affirmed in most respects. However, the court concluded that plaintiffs' constitutional challenge to the supervisor provision pursuant to the Commerce Clause of the United States Constitution potentially had merit and vacated dismissal of that count of the complaint. The court remanded the matter for further proceedings.

In this residential mortgage foreclosure action, the court adopts the approach of the Third Restatement of Property: Mortgages that equitable subrogation is appropriate when loan proceeds from refinancing satisfies the first mortgage, the second mortgage is paid in full as part of the transaction, and the transaction is based on a discharge of the second mortgage, so long as the junior lienor, here defendant, is not materially prejudiced. The court concludes that under such circumstances, equitable subrogation should not be precluded by the new lender's actual knowledge of the intervening mortgage. By limiting the first lien priority of plaintiff's mortgage to the balance due on the prior first mortgage at closing, the superior lien balance owed by the borrowers was not increased. Under these circumstances, the junior lienholder is not materially prejudiced by subrogating plaintiff's mortgage.

In this appeal, the court determined as a matter of first impression that the Supreme Court's holdings in State v. A.G.D., 178 N.J. 56 (2003), and State v. Vincenty, 237 N.J. 122 (2019), requiring that police inform a defendant subject to custodial interrogation of specific charges filed against him before he can waive his Miranda rights, also applies to an interrogee who was arrested and questioned prior to any charges being filed, where the arrest was based upon information developed through an earlier police investigation

The court also concluded that the trial court erred by admitting the victim's statement to police through a police officer's hearsay testimony at trial because defendant was deprived of a meaningful opportunity to challenge the victim's statement through cross examination at a pretrial hearing or before the jury,where at the pretrial hearing the victim could not recall ever giving the statement to police and he later refused to appear at trial to testify before the jury

In a separate opinion concurring with the result but dissenting from the majority's extension of A.G.D. to custodial interrogations where neither a complaint-warrant nor arrest warrant have been issued, a member of the panel expressed concern that the new rule announced in the majority opinion has the potential to introduce subjectivity, ambiguity, and uncertainty to the administration of Miranda warnings.

The opinion that the court originally issued on January 4, 2021, is being withdrawn and replaced by the accompanying opinion based upon the court having granted the State's motion to correct the record relating to two trial transcripts, and its motion to reconsider in light of those corrections. Specifically, the transcripts were corrected to reflect that defendant, in response to his pre-interrogation inquiry, was not told of any charge that supported his arrest, rather than a lie about the charge as described in the earlier opinion.

The matters are remanded for new trials to be preceded by N.J.R.E. 104 hearings, at which the trial court may consider adopting measures such as explanatory jury instructions, reasonable time and witness limits, and prohibitions on misleading demonstrative aids about the 510(k) clearance process.

Following a trial in this residential foreclosure matter, the Chancery Division granted judgment in defendants' favor based on findings that the mortgage and related closing documents were forged, and plaintiff mortgagee failed to present evidence the court found credible and reliable otherwise supporting the legal and equitable claims asserted in the complaint. On appeal, the majority determined the Chancery Division's findings were supported by substantial credible evidence, and plaintiff otherwise failed to present evidence the court found credible supporting its claims. The majority deferred to the court's credibility determinations and findings of fact and affirmed but remanded for the court to allow plaintiff to seek reimbursement from defendants for monies paid on defendants' behalf for taxes and insurance.

The dissent concluded the Chancery Division's finding that the mortgage documents were forged was not supported by adequate, substantial, and credible evidence, and, for that reason, the judgment should be vacated and the case remanded for a new trial or dismissed without prejudice