Opinion Summaries

Defendant Centurion Companies, Inc. subcontracted demolition work it agreed to perform for Alfred Sanzari Construction to plaintiff JHC Industrial Services, Inc. JHC did the work and Sanzari paid Centurion for it. Centurion, however, did not pay JHC in full, prompting this action under the Prompt Payment Act. Although JHC completely prevailed after two years of litigation and trial, the judge refused its application for $104,670.51 in fees pursuant to N.J.S.A. 2A:30A-2(f), awarding it only $16,375.73. The judge reasoned it could not "[u]nder Rendine . . . grant over $100,000 in fees on a judgment that could not have exceeded $30,500."

The court reverses and remands for reconsideration of the fee award. The Prompt Payment Act is a fee-shifting statute that makes an award of "reasonable costs and attorney fees" mandatory to a prevailing party; the judge erred in reading in a proportionality requirement not included in the statute.

Defendant Dwayne D. Boston was convicted of third-degree possession of cocaine following a routine traffic stop on his way home from the movies with his wife and children. He contends the police unlawfully asked him, a front-seat passenger in his wife's car, to hand over his State identification card after he told them he did not have a driver's license. The court agrees, and concludes defendant's subsequent arrest on an open traffic warrant was unlawful, and the drugs seized in the ensuing search incident to his arrest should have been excluded at trial.

The court holds in a routine traffic stop where the driver has to be arrested on an open traffic warrant, the officer's asking whether a passenger is a licensed driver is reasonable; but when the passenger claims he does not possess a license, the officer's further demand for identification from the unlicensed passenger in the absence of particularized suspicion is not.

A sprinkler head discharged for no apparent reason at plaintiff's property and flooded two floors. A major tenant immediately cancelled its lease, and plaintiff made claims under an insurance policy issued by defendant. Defendant hired an expert to examine the sprinkler head; he concluded that defendant had no subrogation claim because it could not prove the cause of the discharge.

Plaintiff requested that defendant preserve the sprinkler head for its expert's examination. However, defendant's expert had already disposed of it. Plaintiff retained its own expert, who concluded the cause of the discharge was either a product defect, faulty installation, or faulty maintenance/inspection, but he could not conclude which of those possibilities was more likely. Plaintiff filed suit, alleging intentional and negligent spoliation of evidence. After discovery, the judge granted defendant summary judgment.

The court concluded that plaintiff was not entitled to an "adverse" or "spoliation" inference against defendant, which was not the third-party target defendant. The court also concluded that although other states have adopted modified proximate cause standards to permit a plaintiff to demonstrate a prima facie spoliation case despite the loss of critical evidence, our Court has not addressed the issue. Instead, relying on traditional negligence principles, the court concluded that, given its expert's indefinite conclusions, plaintiff failed to establish a prima facie case of proximately caused injury and damages. The court affirmed the grant of summary judgment.

Plaintiffs, police officers employed by the City of Trenton who were on work-related temporary disability and their police union, appealed the dismissal with prejudice of their declaratory judgment complaint against the State of New Jersey and the denial of their cross-motion to amend the complaint.

Plaintiffs sought relief from the State Health Benefits Program (SHBP), N.J.S.A. 52:14-17.25 to -17.46a., which requires all public employees to contribute to the cost of their health benefits plan based on their "base salary." Plaintiffs argued that cost of their SHBP benefit contributions while disabled should be calculated based on the temporary disability benefits they receive, not their "base salary."

The State moved pursuant to Rule 4:6-2(e) to dismiss the complaint with prejudice based on the plain language of the statute. The plaintiffs' cross-motion to amend the declaratory judgment complaint sought alternate relief, declaring that recipients of temporary disability benefits should not make any contributions to the SHBP while disabled.

Applying well-established principles of statutory construction, the court held that temporary disability benefits are not "base salary" for purposes of the SHBP. The court also held that the denial of plaintiffs' cross-motion to amend the complaint was not an abuse of discretion where the unambiguous language of the statute rendered the proposed amendment futile.

Plaintiff appealed the grant of summary judgment to her landlord. Plaintiff alleged that defendant's maintenance man, a fellow tenant of plaintiff, sexually assaulted her minor children. Plaintiff's complaint stated several causes of action, but the only two preserved for appeal were that defendant was directly negligent pursuant to Restatement (Second) of Agency, section 219(2)(b), and vicariously liable for the sexual assaults, pursuant to section 219(2)(d), which both provide exceptions to the general rule that an employer is not liable for the acts of its employee outside the scope of his or her employment.

The court affirmed the grant of summary judgment, noting that our courts have applied both of those sections of the Restatement Second in limited circumstances to serve the purposes of remedial legislation, like the LAD, CEPA and the Child Sexual Abuse Act, but not in similar factual circumstances. Additionally, the court examined the significant revisions made to both these sections of the Restatement Second by the Restatement (Third) of Agency and examined decisions from other jurisdictions that discussed these sections of the Restatements.

In these three appeals, the court affirms the trial court's order dismissing without prejudice a six-count indictment against a physician, and her medical assistant and office manager. The State alleged the medical assistant practiced medicine without a license; she and the physician fraudulently billed for the medical assistant's services under the physician's name; and all three individuals conspired to commit this fraud. The trial court did not abuse its discretion because, most significantly, the prosecutor failed to adequately and accurately instruct the grand jury about what a medical assistant may do without encroaching upon the licensed practice of medicine. And, because the law does not clearly draw a line around a medical assistant's scope of allowable activities, prosecuting someone for crossing the line may violate the right to fair warning. The prosecutor also improperly referred to additional evidence that he did not present to the grand jury, and presented a questionable analysis of the amount of money involved in the charged offenses. And the indictment lacked sufficient detail to give defendants a fair opportunity to mount a defense.

Although the trial court had dismissed a previous indictment against defendants, the trial court also appropriately declined to dismiss the second indictment with prejudice, as there was insufficient evidence of prosecutorial vindictiveness.

Based on the record, Hannah has established that his counsel rendered constitutionally deficient representation and that, but for counsels’ errors, there is a reasonable probability that the outcome of the trial would have been different. The Court reverses the judgment of the Appellate Division denying Hannah post-conviction relief, vacates his judgment of conviction, and remands for a new trial.

These appeals arise from two motor vehicle accidents that occurred about a year apart in approximately the same location under similar circumstances. In both instances, a driver traveling westbound on Route 322 in Folsom Borough made an illegal left turn in the direction of one of two driveway entrances to a WaWa convenience store and struck a motorcycle traveling eastbound on the highway. In the first accident, the motorcycle driver was killed and his wife, who was a passenger, seriously injured. In the second accident, the motorcycle driver was seriously injured. The injured parties and the estate of the decedent filed suits against the entity that owns the convenience store and the State, which owns the highway and the land on which the store's driveway entrances are situated, alleging a number of claims sounding in negligence.

The court held that the commercial landowner who operates the convenience store did not owe a duty of care to plaintiffs to prevent drivers on the adjoining State highway from making an illegal left turn into the store's parking lot entrances. In addition, the court declined plaintiffs' invitation to impose on commercial property owners the obligation to warn business patrons of the obvious danger posed by driving over two sets of solid yellow lines to cross two lanes of opposing traffic on a highway with a fifty-five-mile-per-hour speed limit to enter a store parking lot. The court noted a nearby jug handle provided westbound drivers a safe alternative to access the store's parking lot through an intersection controlled by a traffic light.

The court also concluded the State is entitled to immunity for all claims asserted against it under three provisions of the Tort Claims Act: (1) law enforcement immunity, N.J.S.A. 59:2-4, for its alleged failure to enforce its regulations with respect to the design of the parking lot driveway entrances; (2) licensing immunity, N.J.S.A. 59:2-5, for any permitting decision, or alleged absence thereof, related to the construction and maintenance of the driveway entrances; and (3) inspection immunity, N.J.S.A. 59:2-6, for any alleged failure to inspect the driveway entrances during two highway improvement projects after their construction. In addition, the court found the statutory exception to immunity for dangerous conditions of public property did not apply because the driveway entrances, which were in the State's right-of-way, were not dangerous conditions and use of the driveway entrances with due care did not create a reasonably foreseeable risk of the injuries suffered by plaintiffs, which were caused by the illegal activity of the drivers who struck their motorcycles.

The Municipal Vacancy Law, N.J.S.A. 40A:16-1 to -23 (the Vacancy Law), sets out the procedure for filling vacancies in the office of mayor and members of a municipal council. Here, when a vacancy was created in a ward council seat, the remaining members of the city council resolved pursuant to N.J.S.A. 40A:16-5(b) not to fill the vacancy on an interim basis. The local party committee, however, relying on N.J.S.A. 40A:16-11, forwarded three nominees to the council, which refused to appoint any of them and retained the vacancy.

Plaintiffs, the nominee of the party committee and the committee, filed a complaint seeking to seat the nominee as ward councilperson and also alleging the council's refusal to seat the nominee violated the New Jersey Civil Rights Act (NJCRA). The trial judge found in plaintiffs' favor, ordered the nominee seated as ward council person, found a violation of the NJCRA, and awarded counsel fees and costs to plaintiffs.

The court reversed, construing the Vacancy Law as initially enacted in 1979, along with later amendments in 1980 and 1990, as providing the governing body with discretion to fill the vacancy on an interim basis or leave the seat vacant until the next general election.

Effective February 1, 2021, the Legislature abolished "medical parole." Instead, the Legislature empowered the courts to grant certain inmates "compassionate release" based on the "medical parole" criteria. To petition for compassionate release, an inmate must present a valid "Certificate of Eligibility for Compassionate Release" from the Department of Corrections, attesting that the inmate suffers from a terminal disease (meaning that the inmate will die within six months) or a permanent physical incapacity (meaning that the inmate is "permanently unable to perform activities of basic daily living", needs "24-hour care," and has a condition that "did not exist at the time of sentencing").

Because F.E.D.'s Certificate of Eligibility was invalid, the court affirms the trial court's denial of his petition. The two requisite medical diagnoses on which the certificate relied did not conclude that F.E.D. was terminally ill or unable to perform activities of basic daily living.

*The pre-voir dire disqualification, excusal, or deferral of jurors is not a stage at which defendant is entitled to be present or be represented, and defendant has failed to support his representative-cross-section claim.

As the Appellate Division instructed, the trial court on remand must (1) substantially consider the factors advanced in BMW and incorporated into New Jersey law by Baker and (2) must "ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered," in keeping with the guidance in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 425-26 (2003). The Court modifies the Appellate Division's instructions to add that the trial court -- and all trial courts reviewing a punitive damages award issued by a jury against a public entity defendant -- must also apply the heightened scrutiny called for in Lockley and underscored in the companion case of Green v. Jersey City Board of Education, 177 N.J. 434 (2003).

The forfeiture of defendant’s pension under N.J.S.A. 43:1-3.1 does not constitute a fine for purposes of an excessive-fine analysis under the Federal or State Constitutions. Because the forfeiture is not a fine, the Court does not reach the constitutional analysis for excessiveness.

In State v. Hester, 233 N.J. 381 (2018), the Supreme Court held a 2014 amendment to N.J.S.A. 2C:43-6.4(d) that enhanced the penal consequences of a conviction for violating the conditions of community supervision for life (CSL), including by increasing the degree of the crime from a fourth-degree offense to a third-degree offense, constitutes an unconstitutional ex post facto law as applied to individuals who violate the conditions of CSL following the amendment's effective date. In this appeal, the court holds that under the savings statute, N.J.S.A. 1:1-15, an individual who violates the conditions of CSL following the 2014 amendment may be charged with, and convicted of, the fourth-degree offense extant under N.J.S.A. 2C:43-6.4(d) when he or she was sentenced to CSL.

The right of privacy, and particularly privacy in one’s telephone conversations, is among the most valued of all rights in a civilized society. McQueen’s custodial status in the stationhouse did not strip him of all constitutional protections. Article I, Paragraph 7 broadly protects the privacy of telephone conversations in many different settings. McQueen and Allen-Brewer had a reasonable expectation of privacy in their conversation in the absence of fair notice that their conversation would be monitored or recorded. The recorded stationhouse telephone conversation was not seized pursuant to a warrant or any justifiable exigency and therefore must be suppressed.

Tax Court: Ian M. Kunesch v. Andover Twp., Docket Nos. 007226-2013; 007942-2014; 003388-2015; 003298-2016; 000657-2017; 000823-2018; 002702-2019, opinion by Bianco, J.T.C., decided July 29,2021. For plaintiff – Jeffrey D. Gordon (Archer & Greiner, PC, attorney), for defendant – Fred Semrau and Robert J. Rossmeissl (Dorsey & Semrau, LLC, attorney).

Plaintiff, Ian Kunesch ("Mr. Kunesch"), timely filed local property tax appeals with this court for tax years 2013-2019, challenging the assessments imposed by defendant ("Township") on certain real property (“Property”) located in the Township. The Township moved to dismiss those complaints on grounds Mr. Kunesch is not an aggrieved taxpayer within the meaning of N.J.S.A. 54:3- 21, given that he executed a deed in lieu of foreclosure to the lending bank, which stripped him of standing to bring his tax appeals. The court determined that the Township’s motions were without merit, and that Mr. Kunesch has standing to proceed. The court concluded that the lending bank and Mr. Kunesch intended for Mr. Kunesch to remain the owner and in possession of the Property unless he defaulted, at which point the second of two Deeds in Lieu of Foreclosure executed would be recorded. Furthermore, the court found that the second Deed in Lieu of Foreclosure is more appropriately characterized as an equitable mortgage because it was in essence security for a loan. Finally, the court rejected the Township’s argument that Mr. Kunesch was judicially estopped from bringing these tax appeals by finding no miscarriage of justice in proceeding with these matters.

The relevant date for purposes of determining whether subsection (g) is effective as to a particular registrant is the date on which that registrant committed the sex offenses that would otherwise bar termination of registration under subsection (f). Thus, subsection (g) does not apply to registrant.

The Dog Bite Statute’s strict liability standard applies to the claim of an independent contractor who agrees to care for a dog. The statute’s plain language reveals no legislative intent to recognize an exception to strict liability under the Dog Bite Statute for any category of injured plaintiffs. See N.J.S.A. 4:19-16. However, the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8, applies to plaintiff’s strict liability claim, and plaintiff’s status as a professional experienced in the care of dogs is relevant to an allocation of fault. Genuine issues of material fact warrant the denial of plaintiff’s motion for partial summary judgment on her common-law claims.

A jury found defendant Andrew Howard-French guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2); and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a). The offenses arose from the death of a twenty-three-month-old child who was under defendant's care.

The court holds the trial judge did not abuse his discretion in admitting: defendant's prior bad acts in accordance with N.J.R.E. 404(b)(2); the treating physician's testimony regarding the child's injuries; a non-sanitized statement by an investigating detective accusing defendant of lying during an interrogation of defendant; and the State's forensic pathology expert's testimony regarding the child's cause of death in accordance with N.J.R.E. 705. Defendant's arguments that trial counsel's failure to object to the testimony by the treating physician, the detective, and the expert, lack merit. The admission of the testimony was not plain error clearly capable of producing an unjust result.

The court holds that the trial judge did not err in using the word "flight" in the jury charges as was it taken verbatim from the Model Jury Charges (Criminal), "Endangering Injured Victim (N.J.S.A. 2C:12.12)" (rev. Mar. 14, 2016). The court also concludes the trial judge did not err in failing to sua sponte instruct the jury on the affirmative defense of summoning medical treatment under N.J.S.A. 2C:12-1.2(c) because there was no evidence supporting the charge and, to the contrary, there was sufficient evidence that defendant endangered the injured child by leaving him in defendant's apartment with no other adult present.

Finally, even though the court normally does not entertain ineffective assistance of counsel claims on direct appeal, we address and dismiss defendant's claims because they relate to counsel's failure to object to evidence, which as noted, was properly admitted.

The immunities from liability provided by the Good Samaritan Act, N.J.S.A. 26:2B-16, and most TCA provisions invoked by defendants do not apply here. Defendants’ actions may be entitled to qualified immunity under certain TCA provisions on which defendants rely, however, if the involved officers’ actions were discretionary, rather than ministerial, in nature. In this instance, because of a factual dispute, that determination is for the jury to make upon remand.