Opinion Summaries

Due to the complete absence of notice by Ferrante to NJM at any point over years of litigation, including the lack of notice about the high-low agreement or completed jury trial during the UIM process, NJM may refuse to pay the UIM benefits.

Plaintiff was in line at the bank behind a man of the same race who passed a note to defendant-bank's teller demanding money. The teller complied and the robber left. Another employee, seeing the note and believing the man in front of the teller's window — plaintiff — was the robber, called 9-1-1 and provided a description, including the race of the suspect. Police arrived and questioned defendant, who claimed he suffered from PTSD as a result of the incident.

Plaintiff sued the bank alleging negligence in the violation of bank policies and in his misidentification as the robber. The court concludes, consistent with decisions in several other states, that there is no cause of action for negligent identification/misidentification, nor should New Jersey recognize such a tort, given the state's strong public policy to foster cooperation between citizens and law enforcement.

To preserve its constitutionality, the Juvenile Justice Code (Code) must be interpreted to prevent incarceration of all developmentally disabled juveniles in county detention facilities, because not all counties have access to an approved post-disposition short-term incarceration program. Because the Code prohibits the incarceration of developmentally disabled youth in a State facility, the inequity must be avoided of developmentally disabled juveniles in one county facing incarceration while those similarly situated in another do not. T.C., who was seventeen at the time of the offense, admitted participating with two other juveniles in the unarmed forcible theft of marijuana from the backpack of a fourth juvenile. Although he has already served the thirty days of incarceration imposed, the matter is not moot because he is serving juvenile probation that he could violate, and the issue is one of public importance that may evade review in the future. The disposition is reversed.

Search warrants are prospective in nature—they authorize the taking of action. A later-obtained search warrant does not retroactively validate preceding warrantless conduct that is challenged through a suppression motion focused on the legitimacy of the seizure that gave rise to a later search. The State must bear the burden of proving the legitimacy of the seizure that led to a later warrant and search—in this case the stop.

The panel reversed the Board of Review's denial of unemployment compensation. The Board affirmed the Appeal Tribunal's decision that the claimant voluntarily quit her job as a group home worker without good cause related to her work. Her child care fell through unexpectedly and she could not find a co-worker to cover her shift. The panel held that the Board overlooked evidence that the claimant was entitled to benefits under N.J.A.C. 12:17-9.5, because she quit in the face of imminent discharge: her supervisor threatened she might be fired if she did not come in. Had the claimant been fired for staying home, she would have been eligible for benefits. Although "good cause related to the work" under the voluntary quit statute, N.J.S.A. 43:21-5(a), excludes compelling personal reasons, "good cause for being absent from work," in the regulation defining simple misconduct, includes "any compelling personal circumstance, which would normally prevent a reasonable person under the same conditions from reporting work." N.J.A.C. 12:17-10.2(b). The panel concluded that, in order to be eligible for benefits, the claimant was not required to wait to be fired when discharge was imminent.

The trial court granted summary judgment to defendants, landlord and property manager of a multi-family apartment building, on the basis that they did not owe a duty of care to plaintiff, who at the time was an infant staying in the apartment with the tenant's consent, to protect him from the apartment's excessively-hot-uncovered radiator. We conclude that, under the circumstances of this case, the radiator is part of the building's heating system that defendants have control of under common law and N.J.A.C. 5:10-14.3(d), and should have been covered, and reverse.

The court considered, among other things, whether a third party may take advantage of an estoppel doctrine – first recognized in Merchants Indemnity Corp. v. Eggleston, 37 N.J. 114 (1962) – that has been found to apply when an insurer, while reserving its rights or declining coverage, fails to clearly seek its insured's consent to the insurer's control of the defense. The court held that the insurer here could not, as a matter of law, be estopped from denying coverage because there was no clear evidence that the defunct insured changed its position to its detriment even if the insurer assumed the defense without consent. The court also rejected the argument that Eggleston permits avoidance of estoppel only if the insurer uses certain magic words in communicating with its insured; the insurer's disclaiming letter, which expressed the insurer's "willingness" to provide a "courtesy defense," could reasonably be interpreted as conveying an offer rather than a unilateral declaration of a right to control the defense. Consequently, the court reversed the summary judgment entered in favor of the parties seeking estoppel – the victim of the insured's alleged negligence and its property-damage insurer.

Applying the doctrine of probable intent, see Fidelity Union Trust Co. v. Robert, 36 N.J. 561 (1962), the panel reverses summary judgment and holds that the trial court was obliged to consider extrinsic evidence to interpret a trust, even though the language on its face appeared clear. Relying on extrinsic evidence, including the settlor's alleged personal usage of the apparently plain term, "grandchildren," the trustee contended the settlor's gift to her "grandchildren" was intended to exclude the children of her daughter who married outside the settlor's faith. The panel rejects, as contrary to caselaw, the dictum in In re Estate of Gabrellian, 372 N.J. Super. 432, 443 (App. Div. 2004) that "[t]he doctrine of probable intent is not applicable where the documents are clear on their face and there is no failure of any bequest or provision." The matter is remanded for trial on the issue of the settlor's intent.

The totality of the circumstances in this case evince an objective exigency, relaxing the need for a warrant and rendering the officer’s warrantless blood draw constitutional.

In reversing a partial summary judgment entered in defendants' favor, the court rejected the notion that plaintiffs – in alleging an invasion of their privacy in an office building's restroom – could only claim the presence of a hidden recording device by demonstrating their images were actually captured. In adhering to the general principles delineated in Soliman v. Kushner Cos., 433 N.J. Super. 153 (App. Div. 2013), the court concluded that an intrusion on seclusion occurs when a recording device is surreptitiously present notwithstanding whether the victim was ever recorded because the tort is intended to protect the victim's peace of mind and the comfort associated with the expectation of privacy.

Defendant Amy Locane, who had been convicted of second-degree vehicular homicide, N.J.S.A. 2C:11-5(a), and third-degree assault by auto, N.J.S.A. 2C:12-1(c)(2), was sentenced on our remand to precisely the same three-year term of imprisonment as on the first occasion. The panel remanded the matter a second time because the trial judge again erred in the application of the downgrade statute, N.J.S.A. 2C:44-1(f)(2). The judge found mitigating factors not supported by the record, and accorded too much weight to them. Further, the judge failed to find aggravating factors that were present, and thus accorded them insufficient weight. Not only did the mitigating factors fail to substantially outweigh the aggravating, but there were no compelling reasons requiring a downgrade. See ibid.

The panel further found that double jeopardy barred the State from appealing the concurrent terms that were improperly imposed for the offenses. The panel nonetheless discussed State v. Carey, 168 N.J. 413, 428 (2001), concluding that it creates a rebuttable presumption favoring consecutive sentences when a drunken driver inflicts grave harm on more than one victim. Ultimately, a careful and close application of the Yarbough factors must be made in vehicular homicide cases, as in every other instance. State v. Yarbough, 100 N.J. 627, 643-44 (1985).

The sentencing court did not abuse its discretion during defendant’s sentencing proceedings or infringe defendant’s allocution right in any way.

A court issued wiretap orders pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -37, which were later suppressed. The estate of an aggrieved person moved to unseal the intercepted conversations and evidence derived for use in a state civil forfeiture action and a federal civil rights action. The Appellate Division holds disclosure for use in civil litigation is permissible "upon a showing of good cause" under N.J.S.A. 2A:156A-17(c), and disapproves the contrary ruling in In re Disciplinary Proceedings Against Spinelli, 212 N.J. Super. 526 (Law Div. 1986). Section 17(c) has no federal counterpart under Title III, which does not prevent such disclosure of the fruits of a state wiretap order. Suppression does not preclude disclosure in these circumstances.

The trial court may order disclosure only if the need for disclosure outweighs the harms disclosure is likely to cause, subject to review for abuse of discretion. If a disclosure would reveal a person was a confidential informant for a particular agency, in a particular investigation, during a particular period, or in a particular way, the court must consider whether it is publicly known that the person cooperated with that agency, in that investigation, during that period, or in that way.

An individual who has been discharged from probation, albeit with an imperfect record while on probation, and who has subsequently paid all outstanding fines, is not barred from applying for expungement. The trial court erred in holding that petitioner was barred for applying for expungement under N.J.S.A. 2C:52-2(a)(2), because she was discharged from probation "without improvement."

The panel reversed the Division of Child Protection and Permanency's administrative finding that an allegation a father abused or neglected his young daughter was "not established" rather than "unfounded." N.J.A.C. 3A:10-7.3(c)(3), (4). The finding meant there was some, but not a preponderance of evidence, he harmed her or "placed [her] at risk of harm." The Division's finding was unreasonable because its investigation was incomplete. The Division did not consider evidence related to an order to show cause the father's estranged wife filed in their pending divorce, or a video she took of the incident. A matrimonial judge ordered the Division to investigate both parents, but it only investigated the father. The Division's finding also lacked sufficient support in the record the Division did compile. The father tried to stop his daughter from throwing things during a tantrum by holding her arms. She broke free and fell, but suffered no injury. That evidence did not show that he placed her at risk of harm.

Gourmet Dining, LLC v. Union Township, Kean University, andNew Jersey Educational Facilities Authority; Docket Nos. 016504-2013 and 012334-2014, opinion by Novin, J.T.C., decided March 14, 2018.For Gourmet Dining, LLC and Kean University – David B. Wolfe (Skoloff & Wolfe, P.C., attorneys); for defendant – Robert F. Renaud (Palumbo,Renaud & DeAppolonio, LLC, attorneys); for New Jersey Educational Facilities Authority – Marlene Brown (Gurbir Grewal, Attorney General of New Jersey, attorney). The court concluded that the portion of Kean University’s New Jersey Center for Science, Technology, and Mathematics building occupied, operated, and managed by Gourmet Dining, LLC, as Ursino restaurant was subject to local property tax for the 2013 and 2014 tax years. The court determined that Ursino restaurant was not a Kean University dining hall, and did not participate in, and was not part of, any meal plan offered by Kean University to its students, faculty, or administrators. Additionally, Ursino did not accept the students’ flexible dining currencies, or offer discounted meals to University students, faculty, or administrators. Thus, Ursino was not devoted to serving the basic needs of the University’s student body, faculty, or administrators, and failed to furnish a service directly related to the functions of government under N.J.S.A. 54:4-3.3. Moreover, Ursino’s operation was a private, profit-making commercial enterprise, and the payment of fees by Gourmet Dining, LLC to Kean University Foundation did not make the premises occupied by Ursino restaurant a building used for colleges, schools, academies or seminaries, as contemplated under N.J.S.A. 54:4-3.6. Finally, the court concluded that the New Jersey Center for Science, Technology and Mathematics building is an educational facility under the New Jersey educational facilities authority law, N.J.S.A. 18A:72A-2 to -83. However, the operation and management of Ursino restaurant was not a project of the New Jersey Educational Facilities Authority. Significantly, Gourmet Dining, LLC was not an agent of the New Jersey Educational Facilities Authority, as such term is construed under N.J.S.A. 18A:72A:18. Therefore, application of N.J.S.A. 18A:72A-18 to Gourmet Dining, LLC’s use, occupancy, operation, and management of Ursino restaurant does not afford it an exemption from local property tax. (39

The court reverses the denial of defendants' motion to suppress drugs and guns found after a plain view sighting through the open door of an apartment. The police used a tool to force entry into the locked apartment building twice before approaching the fourth-floor apartment door. The State, conceding a lack of probable cause, argued that the forced entry into the building did not violate defendants' expectation of privacy because of the size of the apartment building. The court refused to "condone the police forcing entry into a locked residential apartment building while on an investigative hunt for suspected criminal activity."

The court holds that the New Jersey Uniform Arbitration Act, N.J.S.A. 2A:23B-1 to -32, does not require an arbitrator to hold an in-person hearing at a physical location. Thus, unless the parties contract for an in-person arbitration hearing, or they show specialized need for such a hearing, arbitrators can conduct hearings by telephone conference or by other electronic means.

Accordingly, the court affirms an order that denied the application of defendant Hereford Insurance Company to compel an arbitration organization, Arbitration Forums, Inc., to hold an in-person arbitration hearing concerning the reimbursement of personal injury protection (PIP) benefits.

Finding the pace of the proceedings here to be glacial in comparison to that which the Court found "troubling" in Division of Child Protection and Permanency v. E.D.-O., 223 N.J. 166, 194 (2015), the court concluded that the Department of Children and Families' inexcusable failure to provide complete discovery for a period of years – a circumstance that delayed the start of an evidentiary hearing about events that occurred more than six years earlier – fully justified an ALJ's dismissal of the Department's abuse and license-removal proceedings against the defendant and warranted the court's conclusion that the Department's reversal of the ALJ's ruling was arbitrary, capricious and unreasonable.

Sufficient credible evidence supported the trial court’s determination that defendant was given an adequate opportunity to present the vehicle’s registration before the search commenced. When a driver is unwilling or unable to present proof of a vehicle’s ownership, a police officer may conduct a limited search for the registration papers in the areas where they are likely kept in the vehicle. When a police officer can readily determine that the driver or passenger is the lawful possessor of the vehicle—despite an inability to produce the registration—a warrantless search for proof of ownership will not be justified.