Opinion Summaries

     The court held a Track One Recovery Court candidate is legally eligible for entry into Recovery Court under the second section of N.J.S.A. 2C:35-14(a)(5), where a firearms charge has been resolved and is no longer pending at the time the applicant seeks admission into Recovery Court.

The WPL defines “wages” as “direct monetary compensation for labor or services rendered by an employee, where the amount is determined on a time, task, piece, or commission basis.” N.J.S.A. 34:11-4.1(c) (emphasis added). Under that definition, compensating an employee by paying a “commission” for “labor or services” always constitutes a wage under the WPL. Therefore, a “commission” under the WPL cannot be excluded from the definition of “wages” as a “supplementary incentive.”

     The State appealed the trial court order granting defendant Thomas Canales' motion to dismiss the seven-count indictment for sexual assault, endangering the welfare of a child, and criminal sexual contact relating to three girls under the age of thirteen and one adult female, in separate incidences occurring over a four-month period.  Two successive jury trials were held on all charges, with the first declared a mistrial based on jury deadlock.  The second trial led to a conviction, which the court vacated and remanded for retrial based on an evidentiary error.  On remand, the trial court dismissed the indictment under the fundamental fairness doctrine applying the factors articulated in State v. Abbati, 99 N.J. 418 (1985).
     On appeal, the court concluded the trial judge mistakenly exercised discretion in dismissing the indictment.  The trial judge overlooked the court's prior conclusion that the State proffered substantial evidence during the second trial while evaluating the strength of the State's case, and erroneously weighed putative testimony subject to a jury's credibility determination on retrial.  The court concluded that, on this record, consideration of the Abbati factors and prevailing law warranted reversal and remand for a new trial.

 

An individual outside the reach of New Jersey’s jurisdiction is not a party within the definition of the CNA for purposes of allocation. But that individual may be a joint tortfeasor for purposes of seeking contribution under the JTCL. The Court therefore affirms the judgment of the Appellate Division, as modified.

The Court’s review of the record reveals that Respondent invited a subordinate court employee to his summer home, provided beer and shots of hard liquor that the two drank liberally over the course of several hours, discussed intimate details of the employee’s sexual relationship with her boyfriend, and then touched her in a sexually suggestive manner without her consent. Because of the blatant and serious nature of Respondent’s misconduct, the Court finds beyond a reasonable doubt that there is cause for removal.

     Former redeveloper Blackridge Realty, Inc. ("Blackridge") challenged the legality of an amendment ("Plan Amendment") to the City of Long Branch's ("City") Redevelopment Plan and a two-million-dollar payment made by redeveloper 290 Ocean, LLC to the City as part of its redevelopment agreement.
     290 Ocean proposed a redevelopment project to the City that would require an amendment to the Redevelopment Plan.  The resulting Plan Amendment relaxed several previous restrictions contained within the original Redevelopment Plan that had applied to Blackridge's redevelopment project.  The City's planner, City council, and mayor all approved the Plan Amendment, finding it consistent with the City's Master Plan and in the City's best interest.  The City and 290 Ocean negotiated a redeveloper agreement, which included a provision requiring 290 Ocean to pay a two-million-dollar fee to the City to be used to partially off-set the cost to construct a senior center.  
     Soon after the Plan Amendment was adopted and 290 Ocean's redeveloper agreement with the City was finalized, Blackridge filed a Complaint in Lieu of Prerogative Writs challenging the Plan Amendment's legality and the payment.  The trial court granted summary judgment to the City and 290 Ocean.  
     The court concludes 290 Ocean's two-million-dollar payment was a lawful, negotiated fee intended to defray the City's costs as authorized in N.J.S.A. 40A:12A-8(f) of the Local Redevelopment and Housing Law ("LRHL").  It determines the LRHL does not impose any restrictions limiting payments to the recovery of costs the municipality will incur as a direct result of the redevelopment project, as long as the fee is negotiated at arm's length and collected to effectuate the purposes of the LRHL and the City's Master Plan.  Unlike the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-42, the LRHL contains no explicit nexus requirement regarding the amount of payment a municipality may charge a redeveloper to defray its costs associated with redevelopment.  The LRHL instead empowers a municipality to "negotiate and collect revenue from a redeveloper to defray the costs of the redevelopment entity" in order "to carry out and effectuate the purposes of [the LRHL] and the terms of the [municipality's] redevelopment plan."  N.J.S.A. 40A:12A-8(f).  The statute's plain terms permit a municipality to "negotiate" any payment amount from a redeveloper without requiring a causal connection between the payment and the redeveloper's proposed project, as long as the municipality demonstrates the payment will defray costs to the municipality associated generally with redevelopment.  The language authorizing a municipality to "negotiate and collect revenue from a redeveloper to defray the costs of the redevelopment entity" is plain, unambiguous, and markedly different from the language set forth in the MLUL payment provision.  Compare N.J.S.A. 40A:12A-8(f) with N.J.S.A. 40:55D-42.  
     The Court cautions, regardless of which statute applies, the need for transparency with respect to any municipality's negotiated payment from a redeveloper remains.  Transparency avoids the appearance that "'[a]pprovals would be granted or withheld depending upon the board members' arbitrary sense of how much an applicant should pay.'"  See Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335, 359 (App. Div. 2008) (quoting Nunziato v. Plan. Bd. of Edgewater, 225 N.J. Super. 124, 134 (App. Div. 1988)).  It notes transparency is critically important when a municipality provides a benefit to a redeveloper, so the public is assured the negotiations proceeded at arms-length.  Transparency is fundamental to maintain public trust, to ensure accountability, and to prevent the appearance of favoritism or impropriety in government decision-making.  See Jersey Pub. Co. v. N.J. Expressway Auth., 124 N.J. 478, 492 (1991) (emphasizing the necessity of transparency to uphold public trust and confidence in governmental processes).  The court concludes the City had been transparent in its negotiation of payment with 290 Ocean and its intended use of the funds.
     The court also concludes the Plan Amendment was a lawfully-enacted alteration to the Redevelopment Plan that did not amount to impermissible spot zoning, and Blackridge did not have designated developer status that would allow it to veto the Plan Amendment. Therefore, it affirms the decision of the trial court.
 

     In this appeal, we address the legal standards to be applied by a reviewing court concerning applications for termination or modification of permanent alimony under N.J.S.A. 2A:34-23(j)(3) based on the retirement of an obligor when the judgment or order establishing the alimony obligation was entered prior to the 2014 amendment of N.J.S.A. 2A:34-23.  
     Based on the language in subsection (j)(3), after an obligor has shown they have reached a "good faith retirement age," a prima facie showing of changed circumstances may be established by an obligor satisfying the standards set out in the Court's seminal holding of Lepis v. Lepis, 83 N.J. 139 (1980).  A typical method of showing a prima facie changed circumstance is through proof of a decrease in an obligor's financial circumstances due to their retirement affecting their continuing ability to pay alimony at the level set forth in the current judgment or order.  Here, we hold under subsection (j)(3), that a prima facie change of circumstance can also be shown by an obligee's financial disclosure or other evidence in the record exhibiting:  (1) an obligee has adequately saved for retirement and no longer has a continuing need for alimony as set forth in the order or judgment to maintain the standard of living enjoyed during the marriage; or (2) an obligee had the ability to adequately save for retirement after the final judgment of divorce and, if they had done so, would no longer have a continuing need for alimony as set forth in the order or judgment to maintain the standard of living enjoyed during the marriage.  
     Discovery and a hearing are necessary if genuine issues of material fact exist related to an obligee's ability to have adequately saved for retirement affecting their continuing need for alimony.  At a hearing, under subsection (j)(3) the obligor has the burden to prove by a preponderance of evidence that a modification or termination of alimony is warranted based on the factors set forth in N.J.S.A. 2A:34-23(j)(3)(a to -h).
 

Plaintiffs, successful litigants in Open Public Records Act litigation against defendant school district, obtained an order of judgment awarding attorney's fees on August 28, 2020.  After the court affirmed the August 28, 2020 order of judgment, the parties failed to negotiate payment of the attorney's fees. Plaintiffs then sought a judgment for the attorney's fees in the Civil Judgment and Order Docket, which was entered on July 20, 2022.  When plaintiffs sought to enforce the July 20, 2022 judgment against defendants, including payment for post-judgment interest, the trial court ordered post-judgment interest be calculated from July 20, 2022 to August 29, 2022, the date of its order.  Plaintiffs appealed. 

On appeal, the court held that post-judgment interest accrues from the date of a trial court's entry of an order of judgment awarding attorney's fees pursuant to Rule 4:47, rather than the date the judgment was docketed.  Although the accrual date may be modified by the trial court in the interests of equity, there was no factual predicate proffered by defendants to support modification of the post-judgment interest accrual date in the record.  Accordingly, the court reversed the August 29, 2022 order as to the accrual date of post-judgment interest and remanded to the trial court for entry of an order awarding post-judgment interest accruing from August 28, 2020. 
 

In this medical malpractice case, plaintiff S.V. alleges that defendants prematurely discharged her sister ("J.V.") from their care after J.V. was treated for seventeen days on a voluntary admission basis for psychiatric care at defendants' facility.  The day after her psychiatric discharge, J.V. crashed her car into a utility pole, injuring plaintiff who was a passenger in the vehicle.

Plaintiff's medical expert contends defendants breached their professional standards of care by releasing J.V. prematurely while her medications were still being adjusted and her condition allegedly was not yet sufficiently stabilized.  This "premature release" theory is at the core of plaintiff's claim of negligence.  Notably, plaintiff did not argue below that defendants owed her a duty to warn her that J.V. was too unstable to drive a car, or of any other dangers relating to J.V.'s post-discharge condition. 

The Law Division judge denied defendants' motions for summary judgment.  Among other things, the judge rejected defendants' argument that they owed no legal duty to plaintiff in the circumstances presented.  This court granted leave to appeal, limited to the discrete issue of whether defendants owed a duty to plaintiff with respect to her claims.

The court reverses the summary judgment ruling, applying the four-factor criteria for a legal duty under Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993).  Under the circumstances presented, defendants could not have reasonably foreseen that J.V., shortly after her discharge, would cause a motor vehicle crash that would injure plaintiff.  In addition, plaintiff's theory of liability—alleging that J.V., a voluntary mental health patient, should not have been discharged—clashes with the terms of our civil commitment laws.

The court holds that N.J.S.A. 19:13-8, which bars candidates for public office from being nominated by a political party, by way of direct petition, when they have already accepted the primary or general election nomination of another political party for the same office, does not violate the New Jersey Constitution.  The court, therefore, affirms the decisions by the New Jersey Secretary of State to reject the Moderate Party's request to list Tom Malinowski as its nominee on the November 2022 general election ballot for the United States House of Representatives, 7th Congressional District because Malinowski had already sought and accepted the Democratic Party's primary nomination for that office.

LOCAL PROPERTY TAXATION – REAL PROPERTY – PERSONAL PROPERTY - INTENTION OF PERMANENT AFFIXATION – LEGISLATION, INTERPRETATION – BUSINESS RETENTION ACT – CHAPTER 117
Tax Court:  Exelon Generation Company, LLC, C-O Schwer/Oyster Creek Environmental Protect v. Township of Lacey; Docket Nos. 002147-2018, 004238-2019, 007533-2020, 006775-2021, 005359-2022, 003409-2023, 004088-2024, opinion by Cimino, J.T.C., decided February 25, 2025.  For plaintiff – Farhan Ali (McCarter & English LLP; Frank E. Ferruggia and Farhan Ali, on the Brief); for defendant – Andrea E. Wyatt, (Rothstein, Mandell, Strohm, Halm & Cipriani, P.A.).

Held:  Taxpayers challenge whether storage casks which house highly radioactive spent nuclear fuel are subject to taxation as real property.  Taxpayers must store the spent fuel in the casks to protect the public and the environment from exposure to harmful radiation emitted from the spent fuel. To be taxable as real property, the storage casks must be affixed permanently.  
Taxpayers assert the spent fuel and storage casks are on-site temporarily until a disposal facility opens to accept the spent fuel from not only this site, but also other sites across the nation.  
The Township asserts the spent fuel and storage casks are on-site permanently.  By law, there is nowhere to move the spent fuel.  Though there have been plans over the course of decades for various disposal facilities, the spent fuel has continued to accumulate at the site since the 1970s.  
The court determines the storage casks are taxable since the Taxpayers cannot transfer the spent fuel to another site.

(Judges Joseph M. Andresini and Michael Gilmore did not participate in the consideration of publication of this matter.)

(30 pages)
 

In this legal malpractice action, plaintiff sued the attorneys who represented him in connection with a failed residential construction project alleging damages in excess of $4,000,000.  He contends his prior counsel negligently negotiated the construction contract and incorrectly advised him he could cancel the contract, resulting in a substantial arbitration award in favor of the architect who designed the project, and unpaid counsel fees owed to subsequent counsel.  
 

After filing this action, plaintiff entered a security agreement with the architect in which he assigned to the architect a portion of his anticipated recovery in this action, after first paying his litigation costs and attorneys' fees, to satisfy the arbitration award.  Plaintiff also executed an acknowledgement of attorney charging lien in which he acknowledged a lien on his recovery in this action in favor of subsequent counsel in exchange for their agreement to forebear from collection efforts until resolution of this action.
 

During jury selection, defendants moved to dismiss arguing plaintiff lacked standing because he impermissibly assigned his tort claim to third parties prior to judgment.  The trial court agreed, finding plaintiff "is merely seeking a judgment that is to be paid directly to third parties" and would "receive the benefit of the judgment in name only."  The trial court recognized "[t]he language of the agreements at issue does not indicate an assignment of any claims" but found the assignment of future proceeds violates the rule against assignment of tort claims pre-judgment.
 

The court reversed, concluding plaintiff has standing and did not assign his legal malpractice claim to third parties.  Plaintiff has standing because he retains the right to recover a significant portion of any damages award.  He will recover his legal costs and attorneys' fees before any amounts are paid to his architect and prior counsel and will retain any excess award.  The court also concluded the assignment of the potential recovery in a tort action does not violate the rule against pre-judgment assignment of tort claims if the injured person prosecutes the action in their own name and has standing to do so.  
 

    Following denial of his motion to suppress evidence seized pursuant to a search warrant, defendant Jorge L. Gomez entered a guilty plea to second-degree possession of a firearm during the commission of a controlled dangerous substance ("CDS") offense, N.J.S.A. 2C:39-4.1(a).  He was sentenced to five years in prison with a minimum forty-two months of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).  
    Defendant contended that the search warrant application did not allege criminal conduct, and in the absence of allegations of the specific quantity of CDS, law enforcement needed to allege that defendant had been warned for a first offense of distributing marijuana before the search warrant could be issued.
    The court reviewed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act ("CREAMMA"), codified in relevant part at N.J.S.A. 24:6I-31 to -56; and N.J.S.A. 2C:35-5 to -10, and concluded the legislature did not intend to alter how police conduct investigations of those illegally distributing marijuana or alter the probable cause requirement for obtaining search warrants.  As a result, the court affirmed denial of defendant's suppression motion and affirmed his conviction.
 

The Court Rules allow certified attorneys to pay referral fees to lawyers in other states even if they are not licensed here, and the payment of referral fees does not raise concerns about the unauthorized practice of law. The Court vacates Opinion 745, which reached the opposite conclusion.

Defendants moved to compel arbitration after approximately sixteen months of litigation in the trial court.  The trial court granted defendants' motion, finding they had not waived their asserted contractual right to arbitrate.  On appeal, plaintiff argued the trial court erred in compelling arbitration because defendants had waived their right to arbitrate through their litigation conduct.  In response, defendants contended the court lacked jurisdiction to decide the appeal because the trial court's order was "interlocutory" and the arbitration agreement at issue was governed by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16.

The court reversed the order.  The court held it had jurisdiction to decide the appeal because the FAA does not preempt Rule 2:2-3(a), a neutral procedural rule that identifies the types of orders that are appealable as of right.  Conducting a de novo review of the waiver factors established by the New Jersey Supreme Court in Cole v. Jersey City Medical Center, 215 N.J. 265, 280-81 (2013), the court found defendants had waived their right to arbitration by their litigation conduct, including their failure to indicate their intention to seek arbitration in their Rule 4:5-1(b)(2) certification or to fulfill their continuing obligation to amend the certification.
 

In this interlocutory appeal the court considers the first element of third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a), as applied to the conduct of third parties who allegedly aid or abet another person after that person injures the victim.  The State alleges defendants aided their son after he shot the victim and left him for dead.  More particularly, the State claims defendants failed to call 9-1-1 emergency services after defendants arrived at the scene of the injury, observed the injured victim, and learned he was shot.  Crucially, the State does not allege defendants aided or assisted their son in causing the injuries.
 

On appeal, the court affirms the Law Division order reconsidering and reversing an earlier order that denied defendants' motion to dismiss the endangering count.  Discerning no procedural irregularity in the court's reconsideration of the interlocutory order under review, the court considers de novo the plain language of N.J.S.A. 2C:12-1.2, as it applies to those who aid or assist another person who caused bodily injury to the victim.  
 

The court concludes, as did the trial judge, defendants cannot be held liable for aiding or abetting their son within the meaning of the endangering statute because defendants did not knowingly aid their son in causing bodily injury to the victim.  Accordingly, the court holds a third party cannot be held liable under N.J.S.A. 2C:12-1.2(a), unless the third party "knowingly solicited, aided, encouraged, purposely attempted or knowingly agreed to aid another person in causing bodily injury to the victim" as reflected in the pertinent model jury charge.  See Model Jury Charges (Criminal), "Endangering Injured Victim (N.J.S.A. 2C:12-1.2)" (rev. Mar. 14, 2016).  
 

    This matter presents a novel issue of whether an alternative dispute resolution (ADR) provision is enforceable if the party drafting the contract reserves the right to file certain claims in court while the other party does not have that same right.  The court holds that the unilateral right to file in court is unenforceable.
    Plaintiff entered into a written contract with defendant to build an in-ground swimming pool.  Defendant prepared a contract, which contained an ADR provision that both parties electronically signed.  The court holds the portion of the ADR provision requiring mediation and arbitration of any controversy, dispute, or claim, including statutory claims, is valid and enforceable under Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014).
    However, the court finds the reservation of rights provision contained in the ADR section of the contract, which created an exception to arbitration only for defendant, to pursue a claim for money damages in court if plaintiff failed to pay under the contract while plaintiff was barred from seeking any relief in court, is unconscionable and therefore, unenforceable.  However, the court determined the reservation of rights provision was severable and struck it from the contract, which will allow the parties to mediate and arbitrate their disputes.
 

     In this tax appeal, the court is asked to determine whether the four-year limitation period governing the additional assessment of the Sales and Use Tax (SUT) applies to the issuance of a Notice of Finding of Responsible Person (Responsible Person Notice) for SUTs that a corporation has acknowledged it owed.  A merchant collects SUTs and holds them in trust "as trustee for and on account of the State."  N.J.S.A. 54:32B-12(a).  Thus, an officer or responsible person of a business is held personally liable for these taxes when the business fails to remit them to the State.
     The court concludes that the Responsible Person Notice is a collection tool for a previously determined, fixed, and final tax liability assessed against the business and not an additional assessment. Therefore, the issuance of a Responsible Person Notice for liability of SUT is not subject to a limitations period.  Accordingly, we affirm the Tax Court's order denying, in part, plaintiff Christopher Gill's motion for summary judgment and granting, in part, defendant Division of Taxation's motion for summary judgment.
 

D.T. has not demonstrated that the Archdiocese’s exercise of supervisory authority over McCarthy gave rise to the minimum contacts between the Archdiocese and New Jersey that would be necessary to exercise specific jurisdiction under Fourteenth Amendment due process principles in the setting of this appeal

     Appellants (the "LLCs") appeal from identical orders of the Law Division authorizing condemnation in accordance with the Township of Jackson's exercise of eminent domain against their respective properties, Lots 84 and 90.  The original ordinance authorizing the condemnation of the LLCs' land stated the public purpose for condemning the properties was for use as open space.  The second ordinance, passed after the LLCs had opposed the Township's condemnation efforts, elaborated and stated condemnation of the lots was necessary to affect a land-swap agreement the Township had with a private developer, but still did not otherwise identify the proposed use of the condemned lots.  
     Lots 84 and 90 are not being used for the asserted public purpose of open space—an otherwise valid public purpose for the exercise of eminent domain.  Instead, the lots are being condemned and combined with land the Township already owns to exchange them for land intended to be used as open space.  This court is aware of no reported case in New Jersey, nor has one been brought to its attention, where a private property was lawfully condemned for the sole purpose of exchanging it for other property that will be put to public use.  Neither Kelo v. City of New London, 545 U.S. 469, 477 (2005), nor the Eminent Domain Act, N.J.S.A. 20:3-1 to -50, contemplates the condemnation of a property for use solely as an asset in a scheme for an otherwise valid public purpose on some other property.  The record before us is bereft of any indication as to the intended use of the condemned lots, other than as what is, in essence, currency, to exchange for open space.
     Moreover, because the trial court's prior order authorizing the Township's land-swap agreement included Lots 84 and 90 although those lots were not owned by the Township, the land-swap agreement does not preclude the LLCs from opposing the condemnation, as claimed by the Township.  The Eminent Domain Act offers the exclusive procedure for a property owner's right to challenge the government's authority to condemn its private property.  Accordingly, the Law Division's orders approving the condemnation of the lots are reversed.