Published Appellate Court Opinions

This appeal addresses whether the trial court erred by admitting into evidence a statement defendant had made to police and barring in part the testimony of defendant's expert witness. 

Several months after the drug-induced death of the victim, a police detective interviewed defendant, eliciting from her information about her cell-phone usage before he advised her of her Miranda rights and information regarding her drug-selling activity and contact with the victim after he advised her of her rights.  The detective told defendant he was "not holding anything back" and was "laying it all out . . . on the table" but never mentioned the death of the victim and repeatedly used the present tense when discussing her.   Defendant confessed to selling heroin to the victim.  The parties did not raise before the trial court the admissibility of defendant's statement, and the statement was admitted into evidence. The trial court granted the State's pretrial motion to bar defendant's expert witness from testifying about drug use and addiction, finding him qualified only in toxicology and not in those fields.  A jury convicted defendant of committing a first-degree drug-induced death crime, in violation of N.J.S.A. 2C:35-9(a), along with other drug-related crimes. 

The court finds the trial court (1) committed plain error by admitting defendant's statement without first conducting a Rule 104 hearing to determine under a totality-of-the-circumstances test the voluntariness of defendant's statement and Miranda waiver; (2) erred in admitting the pre-Miranda questions and answers but that that error did not rise to the level of plain error because other evidence was admitted regarding defendant's cell-phone usage; and (3) abused its discretion by limiting defendant's expert testimony without conducting a Rule 104 hearing regarding the expert witness's qualifications and opinions.  The court remands the case and instructs the trial court to conduct evidentiary hearings regarding the voluntariness of defendant's statement, the qualifications of defendant's expert witness, and the admissibility of his opinions.   Whether defendant's convictions are affirmed or vacated for a new trial depends on the outcomes of those hearings.

     At issue in this interlocutory appeal is the propriety of a pretrial order compelling the administration of psychotropic medication in an attempt to restore competency, without a defendant's consent, when the accused has not been deemed a danger to self or others.  With defendant's constitutional rights in view, the court applies the four-pronged test enunciated by the United States Supreme Court in Sell v. United States, 539 U.S. 166 (2003), and concludes the motion judge erroneously determined the State satisfied the second Sell prong.  The court therefore reverses the order under review. 

     In doing so, the court departs from the majority of federal appellate courts and holds the standard of review under the Sell test is mixed; the court therefore reviews the motion court's legal conclusions de novo and its factual findings for clear error as to each Sell prong.  Having resolved the issues by applying the Sell standard, the court does not reach the constitutional arguments urged by defendant and amici curiae.

In this automobile insurance coverage dispute, the court considered defendant Wausau Underwriters Insurance Company's appeal from Law Division orders granting summary judgment to plaintiff Britney Motil, entitling her to $100,000 in underinsured motorist (UIM) insurance coverage, and denying reconsideration.  

This appeal presented the novel issue of whether plaintiff was entitled to UIM coverage as a "covered driver" injured in an automobile accident while driving a "covered auto" with an identified alternate garaging address under her parents' automobile policy.  Defendant disclaimed coverage, under the policy's uninsured motorist (UM)/UIM endorsement step-down provision, because plaintiff was neither a named insured nor a defined family member.  After a de novo review, the court concluded there was ambiguity between the declaration and the policy's step-down provision of $15,000 in UIM coverage because the declaration plainly provided:  $100,000 UM/UIM coverage for each person; plaintiff was a covered driver; the UM/UIM premium charged was the same for each vehicle; and plaintiff's vehicle was a covered vehicle with an alternate garaging address.  Further, the court concluded the policyholder's reasonable expectation of $100,000 UIM coverage should be afforded.  

The court affirmed the Law Division's orders finding plaintiff was entitled to $100,000 in UIM insurance coverage and denying reconsideration.

         In these cases that were consolidated for the purpose of issuing a single opinion, defendants appeal from their convictions following municipal court appeals because the Law Division decided their appeals without conducting hearings or permitting briefing.

         In both cases, the Law Division determined briefing was not required and, because defendants did not request argument, decided the appeals based solely on its review of the municipal court transcripts and the police body camera video introduced as evidence in the municipal court trials.  The court found it "is incumbent on counsel to . . . tell the court why briefing is necessary and to request argument if they want it."  On appeal, defendants argued the court deprived them of their rights to due process and counsel.

         The court reversed, concluding Rules 3:23-4 and -8 require that the Law Division schedule and conduct a hearing on a municipal appeal.  There is no requirement that a defendant request a hearing.  The court also noted, although the proceeding is technically designated an appeal, the Law Division must conduct a trial de novo on a municipal appeal.  At the trial de novo, the Law Division must make its own findings of fact and conclusions of law and, if the court finds the State proved its case beyond a reasonable doubt, sentence the defendant anew.

          The court also concluded, based on the arguments raised by defendants, it would be appropriate to permit, if not require, the parties to file briefs in these cases.  Finally, to avoid any appearance of bias or prejudice, the court required the appeals be assigned to a different judge on remand.

This appeal concerns issues of preclusion and the relationship between the statutory systems for the Commissioner of Education and the State Board of Examiners revoking or suspending an educator's certificate to teach in the New Jersey public schools under N.J.S.A. 18A:6-17.1, and the separate arbitration process specified since 2012 in N.J.S.A. 18A:6-38 to -39 2 (the TEACHNJ law) for a school district terminating or disciplining a teacher for improper conduct.

Appellant, a tenured teacher, was charged by the local board of education with unbecoming conduct.  The school board sought to terminate his employment in the district.  The contested matter was tried before an arbitrator.  The arbitrator found appellant had engaged in unbecoming conduct, but she imposed a milder sanction of a one-year suspension.  The arbitrator's decision was not challenged in court by either appellant or the school board.  The Board of Examiners then pursued the revocation of appellant's license based on his same improper conduct, and it is anticipated that contested case will be tried in the Office of Administrative Law.

Appellant contends the Board of Examiners and the Commissioner—even though they were not parties to the tenure arbitration—have no authority to pursue the revocation of his license because the arbitrator only suspended his employment for one year.  Among other things, appellant invokes a doctrine of "industrial double jeopardy" to support his preclusion argument.  He also contends the revocation proceedings violate his constitutional and civil rights.

The matter was presented to a Law Division judge, who confirmed the arbitration award but rejected appellant's arguments for preclusion.

This court affirms the trial court's decision and holds the Board of Examiners and the Commissioner are not precluded by the arbitration outcome from pursuing the revocation of appellant's teaching certificate.  The statewide teacher certificate revocation process authorized in N.J.S.A. 18A:6-38 and -39 operates separately from the teacher tenure arbitration process under N.J.S.A. 18A:6-17.1.  The manifest legislative intent is for the two statutes to be administered independently of one another.  The proceedings involve non-identical parties, and also different stakes, procedures, and avenues and standards of appellate review. 

The court rejects appellant's assertion of industrial double jeopardy and his claims of the violation of his constitutional and civil rights.

Plaintiff, who was fired from her job as a physician, appeals from an order of the Superior Court, Law Division staying her complaint against defendants pending arbitration.  Plaintiff's claims included allegations of sexual assault, intentional infliction of emotional distress, and a statutory retaliation claim under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50.

Defendants moved to compel arbitration pursuant to plaintiff's employment contract.  The trial court granted the motion, finding the contract's arbitration clause was valid and enforceable.

The court engaged in a de novo review of the employment contract using well-settled contract principles, and it held the mandatory arbitration clause was ambiguous and therefore unenforceable against plaintiff.  Holding the arbitration clause unenforceable, the court declined to reach the question of whether the Federal Arbitration Act applies.

In a separate opinion concurring with the result, a member of the panel would reverse for a different reason, discerning no ambiguity in the arbitration provision and concluding, unlike the contract at issue in Antonucci v. Curvature Newco, Inc., 470 N.J. Super. 553 (2022), the present contract is not governed by the FAA.  Accordingly, plaintiff's LAD claims would not be arbitrable pursuant to N.J.S.A. 10:5-12.7.

In this matter, the court considers the novel issue of the circumstances under which a municipality may decline to adopt a Resolution of Support (ROS) for an applicant seeking to obtain a Class 5 Cannabis Retailer License (CRL) from the State of New Jersey Cannabis Regulatory Commission (the Commission) under N.J.S.A. 24:6I-31 to -56, the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA).

Plaintiff filed an order to show cause (OTSC) and a verified complaint against the Township of West Milford, the Council of West Milford Township (collectively referred to as the Township), and SoulFlora, Inc. after the Township effectively denied plaintiff's request for a ROS for its CRL application by not placing it on a public meeting agenda for consideration by the governing body.  The Township asserts its de facto denial was predicated on a Township ordinance prohibiting businesses with CRLs to be located less than 2,500 feet from each other.  The proposed location of plaintiff's cannabis business was less than 500 feet from SoulFlora's. 

Plaintiff sought injunctive relief to prevent SoulFlora from establishing a cannabis business; enjoining the Township from issuing a ROS to any other new cannabis business applicants; revoking SoulFlora's ROS; and requesting attorneys' fees and costs.  The court affirms denial of plaintiff's OTSC under Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982).  The court holds plaintiff did not have a likelihood of success on the merits, finding the Township's effective denial of plaintiff's request for a ROS was not arbitrary, capricious, or unreasonable since under CREAMMA, municipalities are delegated the authority to promulgate location and density requirements for cannabis retail businesses and are statutorily vested with the right to decline to provide local support for applicants who fail to meet those requirements. 

The court reverses the with-prejudice dismissal of the claims against the Township and remands to the trial court to issue a statement of reasons pursuant to Rule 1:7‑4(a), along with an accompanying order.   The court affirms the dismissal of the complaint against SoulFlora with prejudice, while finding that it is an indispensable party for notice purposes only. 

          In this matter, the court considers whether the trial court properly dismissed plaintiff's complaint with prejudice after finding it was barred by the entire controversy doctrine and res judicata.  Plaintiff's putative class action complaint, filed in Essex County, sought to claw back funds she paid in full satisfaction of a final default judgment, entered in a prior lawsuit adjudicated in Bergen County.  The court holds that the entire controversy doctrine precludes plaintiff from relitigating a final default judgment through the filing of a new complaint in a different court when she failed to pursue any of her substantive arguments in the previous litigation. 

          Plaintiff defaulted on paying an outstanding credit card balance, so the bank closed out her account and assigned her outstanding debt to defendants.  Through a complaint filed in Bergen County, defendants obtained a final default judgment against plaintiff, which she did not move to vacate or otherwise appeal.  Plaintiff fully satisfied the judgment through wage garnishments.

          Plaintiff filed a putative class action complaint in Essex County against defendants seeking a declaratory judgment voiding the debt and any judgments enforcing that debt, as well as treble damages and disgorgement of amounts previously paid to defendants, based on the assertion that defendant was not licensed, as required by the New Jersey Consumer Finance Licensing Act (CFLA), N.J.S.A. 17:11C-1 to -49. 

          Since the entire controversy doctrine precludes plaintiff from pursuing the Essex County litigation predicated on substantive defenses that could have been raised in the prior Bergen County litigation, there was no amendment to the pleading that could have rendered plaintiff's complaint viable.  Thus, dismissal of the complaint with prejudice based on the entire controversy doctrine was appropriate.  The court affirms the Essex County order.

          Following the 2020 decennial United States Census, the City of Jersey City Ward Commission (the Commission) redrew the six election wards for the City of Jersey City (the City).  In these two consolidated appeals, plaintiffs challenge the ward boundaries and map adopted by the Commission.  Plaintiffs contend that the new ward map violates the Municipal Ward Law (the MW Law), N.J.S.A. 40:44-9 to -18, the New Jersey Civil Rights Act (the CR Act), N.J.S.A. 10:6-1 to -2, and their rights of free speech, free association, and equal protection under the New Jersey Constitution.  They also argue that the Commission did not comply with the Open Public Meetings Act (the OPMA), N.J.S.A. 10:4-6 to -21.

The court affirms in part and reverses in part the dismissal of plaintiffs' complaints in lieu of prerogative writs.  The court affirms the dismissal of the claims asserting violations of plaintiffs' constitutional rights, the CR Act, and the OPMA.  The court reverses the dismissal of the claims of violations of the MW Law.  Resolution of those statutory claims requires some, albeit limited, fact-finding.  Therefore, the court remands the MW Law claims for a focused and limited proceeding on whether the Commission had a rational basis for the ward boundaries and map it adopted.

In this matter, the court considers whether the trial court properly denied defendant's motion to suppress evidence seized after a search of the vehicle defendant was operating following a traffic stop.  When the officer approached defendant's vehicle, he noticed a burnt smell of marijuana emanating from it.  The officer did not intend to search the vehicle at that point.  However, after the dispatcher informed the officer defendant had an outstanding warrant necessitating defendant's arrest, and the officer smelled a perceptible odor of raw marijuana on defendant's person as they sat together in the patrol car, the officer decided to search the vehicle.

The court concludes that the officer's testimony regarding the odors established probable cause for the subsequent search of the vehicle.  In addition, the finding of probable cause arose in unforeseeable and spontaneous circumstances.  There were not two stops as argued by defendant.  The discovery of the warrant and new smell emanating from defendant's person permitted the officer to continue the investigation.  The search was permissible under the automobile exception to the warrant requirement as articulated in State v. Witt, 223 N.J. 409 (2015).  The court affirms the order denying defendant's suppression motion.

          Along with another offense, a grand jury indicted defendant on first-degree unlawful possession of a weapon under N.J.S.A. 2C:39-5(b)(1) and N.J.S.A. 2C:39-5(j).  Pursuant to a plea agreement, defendant pled guilty to first-degree unlawful possession of a weapon.  At sentencing, defendant argued N.J.S.A. 2C:39-5(j) was not subject to the Graves Act, N.J.S.A. 2C:43-6(c), which requires a mandatory period of parole ineligibility because N.J.S.A. 2C:43-6(c) did not enumerate N.J.S.A. 2C:39-5(j).  The sentencing judge disagreed and held N.J.S.A. 2C:39-5(j) is a grading statute, and sentenced defendant to a ten-year sentence with a five-year period of parole ineligibility, pursuant to the Graves Act.

          Defendant's appeal was initially heard on the court's sentencing oral argument calendar.  It was then transferred to the plenary calendar given the question of law raised, and to resolve differing interpretations of the Graves Act and N.J.S.A. 2C:39-5(j) in unpublished opinions, and reported uneven practices in the trial courts.  The central question on appeal was whether N.J.S.A. 2C:39-5(j) is a substantive offense not subject to the Graves Act or whether N.J.S.A. 2C:39-5(j) acts as a grading statute, thereby enhancing the penalty, which is subject to the Graves Act.

          The court concluded N.J.S.A. 2C:39-5(j) is not a separate offense but instead a grading statute that is subject to the Graves Act penalty.  Reading the statute to the contrary would lead to an absurd result because a person convicted of a first-degree unlawful weapons offense could serve less time than a person convicted of a lesser-degree offense by virtue of parole eligibility.  The court concluded the more sensible reading of N.J.S.A. 2C:39-5(j) was as a grading statute and therefore affirmed defendant's sentence.

Plaintiffs first sued two pharmaceutical companies in federal court in Texas asserting claims under the federal False Claims Act and the New Jersey False Claims Act (NJFC Act), N.J.S.A. 2A:32C-1 to -18.  After the claims under the NJFC Act were dismissed without prejudice, plaintiffs sued the same pharmaceutical companies in New Jersey re-asserting the NJFC Act claims.   Because the allegations in plaintiffs' complaints had previously been publicly disclosed and because plaintiffs were not the original source of that information, the court holds that plaintiffs' complaints were properly dismissed under the public disclosure bar of the NJFC Act.  See N.J.S.A. 2A:32C-9(c).

This appeal requires us to determine whether defendant Boys and Girls Clubs of America (BGCA), an out-of-state non-profit national youth organization, is subject to the specific personal jurisdiction of our state courts in a lawsuit pertaining to the alleged sexual abuse of plaintiffs by a counselor employed by defendant Boys and Girls Club of Hudson County (Hudson County BGC), a New Jersey non-profit youth member organization affiliated with BGCA. 

The motion judge found specific personal jurisdiction over BGCA regarding plaintiffs' sexual abuse claims.  The court disagrees and reverses. 

Jurisdictional discovery revealed BGCA had no influence or control over Hudson County BGC's hiring, training, or supervision of the counselor.  Consequently, our state courts have no specific personal jurisdiction over BGCA in this matter because BGCA did not purposefully avail itself of benefits in or from New Jersey.

In State v. Witt, our Supreme Court held police cannot conduct a search pursuant to the automobile exception to the warrant requirement once a vehicle has been towed away and impounded.  223 N.J. 409, 448-49 (2015).  John's Law generally requires police to impound a vehicle for at least twelve hours when the driver is arrested for driving while intoxicated (DWI).  This case addresses the novel question of whether police may conduct a search under the automobile exception when they are required to impound a vehicle pursuant to John's Law, but the vehicle has yet to be removed from the scene of the stop.

The trial judge suppressed a handgun found under the front passenger seat, reasoning that because the officers were required to impound the vehicle, they were also required to obtain a search warrant even though the search occurred roadside.  After considering the plain text and rationale of Witt, the court reverses the suppression order, holding the inherent exigency justifying a warrantless search at the scene continues to exist so long as the detained vehicle remains at the location of the stop.  The court reasons the inherent exigency is not abated by the fact the vehicle will eventually be removed from the scene.  Nor is such exigency abated when the decision is made to remove the vehicle, regardless of whether the decision is made in the exercise of police discretion or in compliance with a statutory impoundment mandate.  The court concludes the authority to conduct an automobile-exception search lapses only after the vehicle has been removed to a secure location, not in anticipation of such removal.  So long as police satisfy the foundational requirements of probable cause, spontaneity, and unforeseeability, a contemporaneous on-the-spot search is permitted regardless of the ultimate disposition of the vehicle.  Accordingly, the court declines to create a new bright-line rule making vehicles subject to John's Law categorically ineligible for an on-scene search under the automobile exception.

In this appeal the court addresses whether an entire county prosecutor's office must be recused from a criminal prosecution when the county prosecutor has a personal, disqualifying conflict.  The court holds that so long as the prosecutor has been completely screened from and has no oversight of the matter, the prosecutor's office should not be disqualified.  Accordingly, the court affirms the trial court's order denying defendant's motion to disqualify the entire Monmouth County Prosecutor's Office from continuing to prosecute defendant and multiple co-defendants in this criminal matter.

In this case the court is asked to answer three questions:  first, whether a governmental body, serving as a Redevelopment Agency, is obligated to apply electric vehicle ("EV") parking credits, as required under N.J.S.A. 40:55D-66.20 ("the EV statute"), when determining a concept plan's consistency with a redevelopment plan adopted pursuant to the Local Redevelopment and Housing Law ("LRHL") (N.J.S.A. 40A:12A-1 to -89); second, under section (f) of the EV statute, when applying EV credits, how the credits are to be rounded up; and last, whether a rounded-up EV credit may reduce the total required parking by more than the ten percent limit set forth under section (e) of the EV statute.

The court held that EV credits are to be applied when determining a concept plan's consistency with a redevelopment plan.  Otherwise, a plan that was confirmed as consistent by the Borough would not be the same as the one to be potentially approved at time of preliminary site plan approval.  The court also concluded that when applying EV credits to the total number of calculated spaces and that number includes any decimal, based on the plain language of the statute, the calculation must be rounded up to the next whole parking spot.  However, also based on the plain language of the statute, the court rejected the contention that a rounded-up EV credit can reduce the total required parking by more than the ten percent limit set forth under section (e) of the EV statute, which is more specific than section (f) and therefore controls.

Applying these principles, the court affirmed the Law Division's denial of plaintiff's motion for summary judgment and grant of defendant's cross-motion for summary judgment.

In this medical malpractice action, the court granted defendant Perry Loesberg, M.D. leave to appeal Law Division's order's denying his motions to dismiss plaintiff's amended complaint due to their failure to serve an affidavit of merit (AOM) within 120 days of the filing of defendant's answer in accordance with N.J.S.A. 2A:53A-27.  The court affirms, concluding the orders were supported by the record because there were extraordinary circumstances warranting an extension of the AOM 120-day filing deadline. 

Prior to defendant being named in the amended complaint, a court order granted plaintiff's motion to waive the filing of an AOM as to the then-named defendants.  The lack of a Ferreira conference after defendant answered the amended complaint, coupled with the prior court order and defendant's discovery response failure to raise the lack of an AOM as a defense, constituted "an almost perfect storm" of events that warrant affording plaintiff additional time to submit an AOM.  See A.T. v. Cohen, 231 N.J. 337, 350 (2017).  A Ferreira conference should have been conducted to bring the parties together to address the applicability of the AOM waiver order on the claims against the newly-added defendant.  Permitting plaintiff to file an AOM outside the 120-day statutory deadline and denying defendant's motions to dismiss prevents an injustice.

Plaintiff, a tenured professor, was fired after a university received a series of student complaints.  The university issued charges against plaintiff and conducted dismissal proceedings pursuant to its faculty handbook, a document which, among other things, detailed the process for removing a tenured professor.  The university's board of trustees found by clear and convincing evidence that plaintiff had engaged in willful misconduct and terminated his employment.

Plaintiff filed suit, alleging the board failed to establish adequate cause for termination by clear and convincing evidence.  The trial court granted the board's motion for summary judgment, finding the board was not arbitrary, capricious, or unreasonable in its decision to terminate plaintiff in accordance with the agreed-upon guidelines established in the faculty handbook.

After a de novo review of the trial court's summary judgment order, the court affirmed, holding that the administrative agency standard of review used to analyze the internal decision-making of public universities applied to a private university's termination of a tenured professor.

In this appeal, as an issue of first impression, the court was asked to consider whether N.J.S.A. 43:21-19(i)(10)— from the time of its enactment in 2010—provided an exemption for court reporters under the Unemployment Compensation Law ("UCL"), N.J.S.A. 43:21-1 to -71, or whether court reporters must still establish a Federal Unemployment Tax Act ("FUTA") exemption pursuant N.J.S.A. 43:21-19(i)(1)(G).  The court determined N.J.S.A. 43:21-19(i)(10) does provide such an exemption and there is no requirement for court reporters to establish a FUTA exemption.

The court noted the express language of N.J.S.A. 43:21-19(i)(10) provides that services performed by court reporters "shall not be deemed to be employment subject" to the UCL.  The court presumed the Legislature understood the implications of removing court reporters from N.J.S.A. 43:21-19(i)(7)(Y) and the corresponding FUTA mandate and placing the amendment in a different section.  The DOL asserted there were no scenarios in which the new statute, N.J.S.A. 43:21-19(i)(10), would apply to court reporters in a manner distinct from the operation of the prior exemption under N.J.S.A. 43:21-19(i)(7)(Y).  The court rejected that interpretation, which would have rendered N.J.S.A. 43:21-19(i)(10) meaningless because the amended statute must be read in harmony with N.J.S.A. 43:21-19(i)(7)(Y) and the rest of the statute.  The court further determined the Legislature was fully aware of the prior requirement for court reporters to establish a FUTA exemption under N.J.S.A. 43:21-19(i)(7)(Y), which is why it amended the statute to remove the requirement for a FUTA exemption under N.J.S.A. 43:21-19(i)(10).

The court noted that although a sensible reading of N.J.S.A. 43:21-19(i)(10) provides an exemption for court reporters, to the extent the statutory language resulted in more than one reasonable interpretation, the legislative history unequivocally established the Legislature intended to dispense with the requirement to establish a FUTA exemption.  Accordingly, the court reversed the Commissioner's holding with respect to the applicability of N.J.S.A. 43:21-19(i)(10) and concluded petitioners are exempt from the time of the enactment of the statute in 2010.

         The court granted defendant leave to appeal from two orders entered by the Family Part, which denied a motion to amend his answer to include a counterclaim for divorce and his subsequent motion for reconsideration.  On appeal, the court reversed both orders.

          The court concluded defendant should have been permitted to amend to include a counterclaim because discovery was not concluded, there was no trial date, and the interest of justice required it.  The proposed counterclaim alleged defendant learned of conduct between plaintiff and a third party, which constituted grounds for divorce based on irreconcilable differences and extreme cruelty.  Moreover, based on defendant's proposed pleading and extant business litigation in the Law Division involving the parties and the third party, the case appeared to be complex in that defendant's counterclaim sounded in claims against plaintiff for:  dissipation, marital fault, and bad faith.

         Plaintiff argued to the trial court and on appeal that Rule 5:4-2(e) barred defendant's ability to amend the answer to include incidents that occurred during the marriage because defendant knew about the claims and failed to file a counterclaim with his initial answer.  The court concluded Rule 5:4-2(e) was inapplicable because it applies when a party seeks to amend an already existing counterclaim.  Moreover, the court harmonized Rule 5:4-2(d) and (e) with Rule 4:9-1 and held the amendment of Family Part pleadings are subject to the liberal interest of justice standard in Rule 4:9-1, and courts should permit a party to amend where the request is timely, and not futile, frivolous, or harassing.