Opinion Summaries

In this appeal, the court considered a condominium association's standing to sue defendants alleged to have been involved in the design, manufacture, and installation of the condominium's windows. The motion judge found the association lacked standing because the master deed declares without ambiguity that the windows are part of the units. The court agreed with that understanding of the master deed and the limits it places on the association's window claims, but the court also recognized that any claim against these defendants based on allegations that their actions altered the buildings' exterior appearance in a way that violated a historic preservation easement could be asserted because the association is bound by the easement and would have a sufficient stake in that claim's outcome. Additionally, the court rejected the motion judge's finding that the association was limited to suing only the unit owners for damages caused to the common elements; that determination is inconsistent with the nature of the association's relationship to the common elements and to the unit owners.

Tax Court: National Winter Activity Center v. Dir., Div. of Taxation, Docket No. 008480-2017; opinion by Bianco, J.T.C., decided September 25, 2020. For plaintiff – Cara A. Parmigiani (Law Office of Cara A. Parmigiani LLC, attorney); for defendant - Joseph A. Palumbo (Director, Division of Taxation, attorney); for movant – Joshua A. Zielinski (O’Toole Scrivo, LLC, attorneys).

The court held that the movant, Vernon, satisfied the requirements for intervention as of right under R. 4:33-1, and granted Vernon’s motion to intervene, finding that Vernon has a legitimate interest in the subject of the litigation due to its authorization to use the funds in its municipality to further the purposes of the Fair Housing Act (N.J.S.A. 52:27D-301 to 329.9). The court also found that Vernon’s interest in the litigation was not adequately represented by the named defendant, the Director, and that the Municipality’s presence is necessary in cases where it is the ultimate user of the funds. Further, the court decided that Vernon’s application is timely because Vernon did not have actual notice of the pending litigation. The court rejected the Plaintiff’s motion to transfer the fees held in escrow by Vernon to the State because Vernon is the ultimate user of the funds, given that Vernon has obtained authorization to assess and maintain Non-Residential Development Fee funds under N.J.S.A. 52:27D- 329.2(a),(b).

Tax Court: Erin B. O’Connell v. Township of Neptune, Docket No. 009646-2020, opinion by Sundar, J.T.C., decided September 23, 2020. For plaintiff – Erin B. O’Connell (self-represented);for defendant – Gene J. Anthony (Law Offices of Gene J. Anthony, attorney).

Held: Defendant’s motion to dismiss plaintiff’s complaint as untimely filed is denied. Although plaintiff’s complaint to the Tax Court was filed on June 30, 2020, thus, beyond the deadline for filing complaints from the judgment of a county board of taxation, she benefits from the filing deadline extension due to COVID-19. Such extension was specifically provided for by the Orders of the New Jersey Supreme Court which culminated into law (L. 2020, c. 35). Although that law specifically excepts the tolling of appeal deadlines for properties which are located in Monmouth County (since Monmouth County participates in the Assessment Demonstration Program), and plaintiff’s property is located in Monmouth County, it does not affect the court’s conclusion. This is because the law applies only to “appeals filed with a county board of taxation,” and not as here, to appeals filed with the Tax Court from a county board of taxation’s judgment.

An underage adult defendant may be held civilly liable to a third-party drunk driving victim if the defendant facilitated the use of alcohol by making his home available as a venue for underage drinking, regardless of whether he is a leaseholder or titleholder of the property; if the guest causing the crash became visibly intoxicated in the defendant’s home; and if it was reasonably foreseeable that the visibly intoxicated guest would leave the residence to operate a motor vehicle and cause injury to another. The duty the Court recognizes today was foreshadowed by precedent and therefore will apply in the case of Zwierzynski.

The New Jersey Arbitration Act (NJAA), which provides a default procedure for the selection of an arbitrator and generally addresses the conduct of the arbitration, clearly expresses the Legislature’s intent that an arbitration agreement may bind the parties without designating a specific arbitrator or arbitration organization or prescribing a process for such a designation. N.J.S.A. 2A:23B-11(a), -15. Under principles of New Jersey law that generally govern contracts, the Agreement at issue is valid and enforceable.

The court determines a settlement agreement between defendant Cumberland County and a former County employee resolving a preliminary notice of disciplinary action (PNDA) against the employee is not a government record under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, but instead is a personnel record exempt from disclosure under section 10 of the statute, N.J.S.A. 47:1A-10. The court rejects the argument of plaintiff Libertarians for Transparent Government that the settlement agreement was properly released in redacted form as not supported by the language of section 10 or the history of excluding personnel and pension records from public access contained in Executive Orders 9 (Hughes), 11 (Byrne) and 21 (McGreevey).

The court reverses the trial court order that released the redacted settlement agreement and remands for the court to consider whether Libertarians is entitled to the agreement, either in whole or in part, under the common law right of access to public records, see Bergen Cty. Improvement Auth. v. N. Jersey Media Grp., Inc., 370 N.J. Super. 504, 520 (App. Div. 2004).

This case examines the scope of Rule 3:11, which requires law enforcement to make a detailed record of an out-of-court identification. The court focused on an unusual live identification event that took place almost two years after the robbery and two weeks before trial. The prosecutor asked the robbery victim to come to the courthouse and sit in a hallway while defendant and other jail inmates were led past her. This event was not electronically recorded and no verbatim account was made of the dialogue between the victim and prosecutor's office representatives who accompanied her. Defendant argued this event corrupted the victim's memory, rendering her subsequent in-court identification inadmissible.

The State did not seek to introduce evidence of the hallway event at trial and characterized it as "trial prep." The court nonetheless concluded it was an out-of-court "identification procedure conducted by a law enforcement officer" within the meaning of Rule 3:11(a) and therefore should have been recorded. The court remanded for the trial court to make detailed findings concerning whether the hallway procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

In this insurance coverage case, the court interprets a policy provision that excludes damage claims "arising out of any act of 'assault' or 'battery' committed by any person," including claims "arising out of . . . any act or omission in connection with the prevention or suppression of such 'assault' or 'battery.'" The court concludes that the exclusion barred an insured tavern's demand for a defense and indemnification arising out of one patron's fatal shooting of another. Specifically, the exclusion encompassed claims by the estate of the deceased patron that the tavern negligently hired, trained, and retained staff, and negligently failed to maintain a place free of reasonably foreseeable criminal activity. Those claims related to acts or omissions in connection with preventing the assault or battery of the victim. In reaching its conclusion, the court distinguished L.C.S., Inc. v. Lexington Insurance Co., 371 N.J. Super. 482 (App. Div. 2004).

The Ordinance is sustained subject to the Court’s further modifications to comply with current legislative enactments. The Court concludes that state law permits the creation by ordinance of this civilian board with its overall beneficial oversight purpose. The Court holds that this review board can investigate citizen complaints alleging police misconduct, and those investigations may result in recommendations to the Public Safety Director for the pursuit of discipline against a police officer. In addition, the review board may conduct its oversight function by reviewing the overall operation of the police force, including the performance of its IA function in its totality or its pattern of conduct, and provide the called-for periodic reports to the officials and entities as prescribed by municipal ordinance. However, to the extent some investigatory powers that the City wishes to confer on its oversight board conflict with existing state law, the Court modifies the Appellate Division’s judgment. The board cannot exercise its investigatory powers when a concurrent investigation is conducted by the Newark Police Department’s IA unit. An investigation by the IA unit is a function carefully regulated by law, and such an investigation must operate under the statutory supervision of the police chief and comply with procedures established by Newark’s Public Safety Director and the mandatory guidelines established by the Attorney General. Concurrent investigations would interfere with the police chief’s statutory responsibility over the IA function, and the review board’s separate investigatory proceedings would be in conflict with specific requirements imposed on IA investigations and their results. The Court also invalidates the conferral of subpoena power on this review board.

This interlocutory appeal concerns the appropriate procedures under the current statute, N.J.S.A. 2A:4A-26.1, for evaluating whether a juvenile charged with a very serious offense should be waived to the Criminal Part and prosecuted as an adult.

On leave granted, the juvenile in this case, defendant Z.S., appeals the Family Part judge's order sustaining a prosecutor's decision to waive him to the Criminal Part to face a jury trial for committing first-degree aggravated sexual assault upon a minor.

The court vacates the trial judge's order because of several critical deficiencies in the processes that resulted in Z.S.'s waiver. Among other things, the prosecutor's written statement of reasons in support of waiver was incomplete, conclusory, and utilized obsolete 2000 guidelines that do not track the controlling factors under the revised 2016 waiver statute.

In addition, the prosecutor failed to explain in writing in advance of the waiver hearing why the extensive mitigating psychological evidence marshalled by the defense, documenting Z.S.'s intellectual disabilities and mental health issues, was inconsequential.

The trial judge also misapplied his discretion by declining to adjourn the waiver hearing at defense counsel's request, with the State's acquiescence, after she had been released from the hospital for pneumonia only two days earlier and was still feeling ill and having difficulty breathing.

Because of these grave procedural shortcomings, the court remands this matter for a renewed waiver hearing. The opinion also offers guidance on how best to proceed in such waiver matters under the revised 2016 statute.

Pfizer’s Agreement and related communications informed Skuse that if she remained a Pfizer employee more than sixty days from her receipt of that Agreement, she was deemed to assent to it. Those communications clearly and unmistakably explained the rights that Skuse would waive by agreeing to arbitration, thus complying with waiver-of-rights case law, and Pfizer’s delivery of the Agreement by e-mail did not warrant its invalidation. Pfizer’s use of the word “acknowledge” was appropriate in the circumstances of this case, given the terms of Pfizer’s arbitration policy and other expressions of assent that immediately preceded that request. Pfizer should not have labeled its communication explaining its arbitration agreement a “training module” or training “activity,” but that is not a basis to invalidate the Agreement. The Agreement was valid and binding, and the Court concurs with the trial court’s decision to enforce it.

The health insurance premium contribution rates paid by the Association’s members were preempted by statute and therefore non-negotiable. PERC’s construction of Chapter 78 comports with the statute’s language and the Legislature’s stated objective to achieve a long-term solution to a fiscal crisis.

The court considers whether interest on a jury award of compensation for the condemnation of property by the Commissioner, Department of Transportation (Commissioner), is subject to the fixed six percent per annum interest rate established in N.J.S.A. 27:7-22. The court held that N.J.S.A. 27:7-22, which applies only when property is condemned by the Commissioner, was impliedly repealed by the subsequently enacted N.J.S.A. 20:3-50. That provision of the Eminent Domain Act of 1971 established uniform standards for the condemnation of property by all State entities. Because of the implied repeal of N.J.S.A. 27:7-22, interest on an award of compensation for the condemnation of property by the Commissioner must be determined in accordance with N.J.S.A. 20:3-32. That statute vests in the trial court broad discretion to establish an interest rate based on evidentiary submissions. This discretion includes the authority to determine when the rate of interest should be simple or compound.

The court considers, on leave granted, the denial of defendant Our Lady of Lourdes Medical Center, Inc.'s motion to dismiss the complaint filed in the name of plaintiff Carolyn Repko ten months after her death and granting the motion of her estate to amend the complaint to substitute itself as plaintiff after the running of the statute of limitations. Because a complaint by a dead person is a nullity, leaving nothing for an amended complaint to "relate back" to under Rule 4:9-3, the court reverses the denial of Lourdes' motion and remands for entry of an order dismissing the complaint with prejudice

Tax Court: Glenpointe Associates, Glenpointe Associates II, LLC, and Glenpointe Associates III v. Township of Teaneck; Docket Nos. 004987-2007; 004989-2007; 004982-2007; 004984-2007; 004989-2007; 004992-2007;002967-2008; 002975-2008; 002977-2008; 002982-2008; 002987-2008; 001623-2009; 001638-2009; 001639-2009; 001640-2009; 001642-2009; 017684-2009;002077-2010; 002080-2010; 003183-2010; 003198-2010; 003207-2010;020410-2010; Opinion by Andresini, P.J.T.C., decided August 11, 2020.For plaintiff - Carl A. Rizzo (Cole Schotz P.C., attorneys); for defendant - Kenneth A. Porro and Edna J. Jordan (Chasan Lamparello Mallon & Cappuzzo, P.C., attorneys).

Held: In the valuation of an office complex portion of the subject property with exceptional quality, amenities, and location, the court concluded that the leases contained in the subject office are the best metric for determining economic rent. The court further found that plaintiff taxpayers’ claims that the subject leases must be adjusted to reflect alleged above market leasing commissions while simultaneously taking an expense for the commission is not a valid appraisal practice supported by any accepted source or methodology. Furthermore, adjustments made to comparable leases from the subject market must be grounded in cognizable data and may not be applied in an arbitrary fashion, though when stripped of arbitrary adjustments the comparable leases may still be of probative value in determining economic rent. Additionally, the use of outlier capitalization rates without adequate justification or support on the record renders those figures unreliable to the court in determining the fair market value of the subject.

The court further concluded that in the valuation of a hotel portion of the subject property, it cannot accept plaintiffs’ expert’s conclusions as valid or credible when the expert relies on lower-end data sets and improper hotel classification as the basis for his valuation conclusions. When relying on competitive hotel sets, an expert must base his conclusions on the correct classification of the subject hotel and rely on adequately comparable sources of hotel data from within that classification. An expert’s reliance on inferior hotel properties in his competitive set cannot be afforded any weight. Further, the court cannot accept capitalization rates based on unsubstantiated theories of risk without support in the record.

Subject to the limits imposed here by the Court, the Bond Act does not violate the Constitution

Neither federal nor state protections against compelled disclosure shield Andrews’s passcodes

A levy was placed on a bank account belonging to defendant judgment-debtor. Defendant objected to the levy on the grounds that the only money in the account was from the part of defendant’s wages that were exempt from a wage garnishment. The question presented is whether a levy can be made on money deposited in a bank account from wages that were previously subject to garnishment. Based on the applicable statutes, the court found that previously garnished wages deposited in a bank account does not exempt the money from levy.

The New Jersey Workers Compensation Act (WCA), N.J.S.A. 34:15-1 to -146, generally prohibits employees from suing their employers for injuries sustained in workplace accidents. This case probes the boundaries of the ]"intentional wrong" exception to that general rule.

Plaintiff suffered serious injury while riding as a passenger on a forklift in defendant's warehouse. It was a common practice at the warehouse for workers to ride on the forklift while another worker drove the forklift. This practice violates workplace safety regulations promulgated by the U.S. Department of Labor Occupational Safety and Health Administration (OSHA).

The court first addressed plaintiff's contention that the WCA does not bar his lawsuit because he was not employed by defendant but rather by an employee leasing agency. The court applied the five-part test announced in Kelly v. Geriatric & Medical Services, Inc., 287 N.J. Super. 567, 571–72 (App. Div. 1996), and determined that plaintiff was a "special employee" of defendant and thus subject to the exclusive remedy of workers compensation.

The court turned next to plaintiff's contention that he is not barred from suing defendant because the company's practice of allowing, if not encouraging, workers to stand on moving forklifts was an intentional wrong, thereby exempting this case from the exclusive remedy of workers' compensation. Plaintiff argued defendant's misconduct constitutes intentional wrong because it occurred repeatedly. The court rejected the argument that violative conduct is an intentional wrong merely because it is an ongoing practice. The court interpreted Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985) as narrowing the circumstances when the intentional wrong exemption applies in recognition that reckless or negligent conduct often reflects a "deliberate" business decision by employers to promote speed and efficiency at the expense of workplace safety. The court concluded the intentional wrong exception would significantly erode the legislative preference for the workers' compensation remedy if all a plaintiff must show is that the negligent or reckless conduct was committed repeatedly.

The court surveyed a series of Supreme Court cases that applied the Millison analytical framework and concluded that defendant's violative conduct was not sufficiently egregious to rise to the level of an intentional wrong. The court noted the cases following Millison that found intentional wrong involved violative conduct that was not just committed on multiple occasions but was repeated in the face of efforts by government regulators or others to put a stop to the practice. An employer's wrongful conduct is especially egregious when deception is used to conceal the repetition.

In this case, there were no prior forklift-related accidents or injuries, no prior OSHA citations pertaining to forklift operations, and no prior complaints from workers about unsafe forklift practices. Nor did defendant attempt to conceal its violative practice or otherwise deceive safety investigators. The court thus concluded that plaintiff failed to show his injury was substantially certain to occur and that the circumstances of its infliction were more than a fact of life of industrial employment.

In this appeal, the court affirmed the trial court's granting of counsel fees to a former court-appointed attorney in this guardianship action involving Sally DiNoia. The counsel fee application was opposed by Sussex County counsel. The amount awarded was $43,397.20. The County of Sussex, Division of Social Services, Adult Protective Services (APS) appealed the order.

Appellant filed a verified complaint seeking to declare Sally DiNoia incapacitated and for the appointment of a guardian over her person and property under the Adult Protective Services Act (the Act), N.J.S.A. 52:27D-406 to -425. The matter was highly contentious and Sally's son, John DiNoia, was enjoined from interfering with her care and treatment. An order was entered adjudging Sally an incapacitated person and appointing her daughter as guardian.

The court agreed with the trial court that John failed to cooperate with orders of the court and filed numerous applications, which were essentially frivolous, requiring responses from counsel. Additionally, the court determined that APS neglected to perform its statutory duties and failed to conduct a financial investigation and analysis of Sally's assets and debts as required by Rule 4:86-2(b).

Applying a deferential standard of review, the court held that the trial court was authorized to compel APS payment of fees for a court-appointed attorney. The court held, as a matter of law, that the trial court was authorized under Rule 4:86-4(e) and the Act to require APS to pay the fees of the court-appointed attorney for Sally. Further, the court found that whether the trial court erred in requiring APS to pay fees was subject to review under an abuse of discretion standard. Therefore, the court affirmed the decision of the trial court.