Published Appellate Court Opinions

A statute of limitations enacted in 2009 bars residential foreclosure actions commenced after the earliest of three points in time: six years from "the date fixed for the making of the last payment or the maturity date set forth in the mortgage or the note," N.J.S.A. 2A:50-56.1(a), thirty-six years from the recording of the mortgage, N.J.S.A. 2A:50-56.1(b), and twenty years from an uncured default, N.J.S.A. 2A:50-56.1(c). In this appeal, the court rejected a mortgagor's argument that a foreclosure action was time-barred because it was filed seven years after a default and the acceleration of the loan. The court determined that the triggering event in subsection (a)'s six-year provision is the date "set forth in the mortgage or the note," and not the date upon which the mortgagee accelerated the loan, because of subsection (a)'s clear and unambiguous language and because subsection (c) provides a time-frame – twenty years – that begins to run upon an uncured default.

N.J.S.A. 9:17-43(a)(1) establishes a presumption that "[a] man is presumed to be the biological father of a child if . . . [h]e and the child's biological mother [were] married to each other and the child [was] born during the marriage." The decedent here died intestate, leaving siblings and a child, who was born when his mother was married to another man. Decedent's siblings claim this presumption, as well as other circumstances, required the court to assume that the mother's husband had "equitably adopted" the child and thereby severed the child's relationship to the decedent. The court affirmed the trial court's grant of summary judgment, holding that N.J.S.A. 9:17-43(a)(1)'s presumption had been rebutted by DNA evidence that conclusively established that the decedent fathered the child, and that the other circumstances were of insufficient weight to cause a break in that natural relationship.

Plaintiff is a certified radon measurement and mitigation business regulated by the Department of Environmental Protection ("DEP") and the largest radon measurement business in the State. While the DEP was pursuing a regulatory enforcement action against the company, the company filed suit against the DEP and several DEP officials in the Law Division, alleging improper conduct and violations of its constitutional, statutory, and common-law rights.

Defendant moved to dismiss the company's constitutional and civil rights claims, asserting their alleged conduct was shielded under principles of qualified immunity. The trial court partially denied the immunity motion and ordered the parties to proceed with discovery.

The panel concludes the trial court misapplied principles of qualified immunity and should have dismissed the corresponding counts of the complaint. The DEP did not violate "clearly established" equal protection and due process rights by pursuing a regulatory enforcement action against the company, and by directing that communications between the company and the agency be channeled through their respective attorneys while the contentious administrative litigation was ongoing. Among other things, the panel notes that a regulatory agency must retain the discretion to interact with private parties in a manner it deems most efficient and effective, so long as it responds to outside inquires within a reasonable time and in a reasonable manner. Discovery on these claims was unnecessary, as defendants have qualified immunity from suit, not just a final judgment. The matter is remanded to adjudicate other open counts of the complaint.

In a separate unpublished opinion issued today, the panel affirmed in part the findings of the DEP Commissioner and the two administrative law judges that the company committed various regulatory violations, and reversed and remanded those findings in part.

In this appeal, a now-evicted tenant of a residential apartment, which he sublet to another, argued that only the subtenant, whose conduct generated the tenancy action, could be evicted. In affirming a judgment of possession, the court rejected the tenant's strained interpretation of the Anti-Eviction Act, N.J.S.A. 2A:18-61.1(c), and conclude that a wrongful act of one permits the eviction of all occupants.

We affirm defendant's judgment of conviction for fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Defendant claimed his guilty plea lacked an adequate factual basis and he demonstrated a colorable claim of innocence. We hold the trial court properly reviewed defendant's claims using the factors set forth in State v. Slater, 198 N.J. 145 (2009), and not a de novo standard of review. We conclude the trial court did not abuse its discretion in making these findings and that there was an adequate factual basis for the guilty plea.

Dissent and opinion filed.

Although the court affirmed the termination of parental rights of these parents, who executed an identified surrender and were removed to Peru, their country of origin, the court emphasized the need to put on the record all matters in child protective services litigation resulting in an order, even when the parties present consent to the order. Notice should also be provided to biological parents when the Division of Child Protection and Permanency seeks to vacate an identified surrender and seek termination of parental rights.

Plaintiff suffered injuries while a forty-year-old man struck a piñata at a birthday party. The judge charged both Model Jury Charges (Civil), 5.20F(4), "Social Guest – Defined and General Duty Owed" (rev. Dec. 2014) (the Model Charge), and Exception (2) to the Model Charge. That exception states that "[i]n cases where the host is conducting some 'activity' on the premises at the time of [the] guest’s presence, [the host] is under an obligation to exercise reasonable care for the protection of [the] guest." This court held that when a plaintiff sustains an injury resulting solely from an "activity" on the host's property – as opposed to an injury caused by a combination of that activity and a physical dangerous condition on the property – then the judge should only charge Exception (2).

The panel addresses the strip search statute, N.J.S.A. 2A:161A-1 to -10, which affords certain protections to persons who are arrested or detained for non-indictable offenses, and whether the Attorney General Guidelines for strip searches extend those protections to persons arrested or detained for crimes.

The panel concludes that neither the legislative history nor the plain terms of the statute authorized the Attorney General to promulgate Guidelines to extend the statute's protections to persons detained or arrested for crimes. The panel further concludes that the strip search was justified here by probable cause and reasonable exigent circumstances, thereby satisfying the Fourth Amendment of the United States Constitution, and Article I, Paragraph 7 of the New Jersey Constitution.

The panel affirms the trial court's order denying defendant's motion to suppress five bricks of heroin seized from defendant's groin area pursuant to a strip search following defendant's arrest for indictable drug offenses.

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 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.

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).

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.