Opinion Summaries

Plaintiff appeals from the trial court's denial of his recusal motion. Before trial of this commercial dispute, plaintiff learned that the judge secured the trial assignment in response to an ex parte communication from a former law clerk, who was an attorney with the law firm for defendant. The attorney asked the judge if she was available to preside, and identified the partner who would try the case. The judge said the partner "likes appearing before me." Plaintiff unsuccessfully argued this amounted to "judge shopping."

On appeal, the court concludes that an ex parte communication to have a case assigned to a particular judge is not a mere scheduling matter. The judge's affirmative response to the communication in this case created an appearance of impropriety. As for remedy, the court holds that less than a complete retrial can restore public confidence in the proceedings' integrity and impartiality. The court affirms the jury's verdict on liability. It decides de novo, or as a matter of original jurisdiction, the remaining evidentiary and legal issues on appeal, and remands for a new trial on damages before a new judge.

No reasonable trier of fact could find that Arthur knew or had special reason to know that Kenneth was engaged in a sexual relationship with a minor. Accordingly, Arthur had no duty to report Kenneth. The record similarly fails to provide a basis for liability to attach to GEM. Because the record here is determinative of Arthur’s and GEM’s liability, the Court need not decide whether a co-worker or employer with knowledge or a special reason to know that a co-worker or employee is engaged in a sexual relationship with a minor has a legal duty to report that co-worker or employee.

The court reversed the abuse or neglect finding under Title 9 against defendant, who was the boyfriend of the child's biological mother. During the eighteen months that defendant dated the child's mother, he provided no financial support for the child or the mother; never lived in the same house as the child and the mother; and the child never described defendant using any parental terms. Based on the unrefuted testimony, defendant had no ongoing responsibility or obligation to provide regular care or supervision for the child. The court held that a person who assumes brief or temporary supervision or care of a child, such as a one-time request to babysit or drive a child to a designated location at the request of a biological parent, does not impose a general and continuing obligation between the adult and the child to trigger the requisite duty of care to charge abuse or neglect under Title 9.

Defendant was sued by his former employer, a foreign corporation, and moved to quash two sets of subpoenas duces tecum and ad testificandum served on defendant's current employer, an out-of-state corporation, in New York and California. Defendant argued the discovery sought was not relevant, Rule 4:10-2(a), or otherwise burdensome or sought for annoyance or embarrassment. R. 4:10-3. Defendant alternatively sought a protective order. Plaintiff opposed the motion, arguing the court lacked jurisdiction to rule on the motion to quash.

The trial judge denied the motions without prejudice, reasoning she lacked jurisdiction under the Uniform Interstate Depositions and Discovery Act (UIDDA), as adopted in New Jersey by Rule 4:11-5(c). However, while defendant's motion for leave to appeal was pending, the judge supplemented her statement of reasons, clarifying that she did not lack jurisdiction to reach the merits of defendant's motion, but rather, that she lacked jurisdiction to compel out-of-state witnesses to appear for the depositions. See R. 4:11-5 ("A deposition for use in an action in this state . . . may be taken outside this state .. . pursuant to a subpoena issued to the person to be deposed in accordance with Rule 4:14-7 and in accordance with the procedures authorized by the foreign state . . . .").

The court affirmed the orders as modified, holding that a New Jersey court always has jurisdiction to decide the merits of a discovery dispute between parties to the litigation, and that the UIDDA and the express language of Rule 4:11-5 do not compel a contrary result.

Business partners entered into two separate settlement agreements to resolve disputes arising from the dissolution of their jointly-owned companies. The first agreement provided for binding arbitration of all disputes before a three-person arbitration panel, one of whom had served as the parties' corporate counsel and was designated as the neutral arbitrator on the three-person panel. In the event he withdrew or was dismissed from the panel by one of the parties, the agreement specified a mechanism for the selection of his replacement.

The second agreement provided for the resolution of disputes pertaining to the collection of accounts receivable from third-party debtors only, and designated corporate counsel as the sole final decision maker. Unlike the first agreement entered two years earlier, the second agreement made no mention of arbitration and provided no mechanism for the replacement of corporate counsel in the event he became unavailable.

When corporate counsel resigned his role as final decision maker under the second agreement, and the parties were unable to agree on a replacement, plaintiff filed an order to show cause and verified complaint, seeking to compel the appointment of a replacement. The court affirmed the Chancery Division's decision that, based upon the doctrines of impossibility and frustration of purpose, corporate counsel's unavailability rendered the second agreement void. Further, because there was no mention of arbitration in the second agreement, it was not an arbitration agreement governed by the New Jersey Uniform Arbitration Act, N.J.S.A. 2A:23B-1 to -32.

Upon review of the PFRS statute’s plain language and history, the Court finds that the Legislature did not intend for children of PFRS members to meet a dependency requirement to receive survivor benefits. The Court’s finding is consistent with the PFRS’s underlying policy goal of financially protecting the family members of deceased PFRS members.

In this case, the court affirms the entry of judgment for the defendant, a psychiatrist, and dismissal of the personal injury case against him. Plaintiff is the estate of a woman killed by the psychiatrist's patient when the patient hit the woman with her car while the woman was riding a bicycle on a narrow country road. Plaintiff sued the psychiatrist after learning the driver was his patient and he had prescribed numerous medications that had the capacity to impair driving.

Plaintiff asserted the psychiatrist's negligent prescription of medications without a warning not to drive was the proximate cause of the fatal crash. Plaintiff argued the psychiatrist had a duty to warn for the benefit of third parties. The trial court's order was affirmed because the court concluded the record did not establish the patient was impaired by the medications prescribed by the psychiatrist when she caused the fatal injury.

The jury in this case found defendant guilty of first-degree kidnapping, N.J.S.A. 2C:13-1(b), when he subjected his victim to four to five hours of uninterrupted sexual abuse. On appeal, defendant contended that the kidnapping charge should not have been presented to the jury because, notwithstanding the extended duration of the criminal attack, the victim's confinement was incidental to, and not independent from, the underlying sex crime with which defendant was separately charged.

Authoritative precedent interpreting the kidnapping offense defined in the New Jersey Code of Criminal Justice makes clear that not every confinement is a kidnapping. State v. LaFrance, 117 N.J. 583, 586 (1990). N.J.S.A. 2C:13-1(b) has been interpreted to require the State to prove that the victim's restraint was not merely incidental to the underlying substantive crime. Id. at 591. A key question is whether the circumstances of the confinement created a significant danger to the victim independent of the risk of harm posed by the underlying offense. Id. at 587.

Applying those legal principles to the particular facts of this case, this court concluded that the force and threats defendant used to physically restrain the victim were the same force and threats he used to commit the underlying sex crime. A close review of the proofs presented by the State at trial show there was never a point during the prolonged criminal episode when the victim was being restrained but was not being sexually abused. In other words, the acts constituting the alleged kidnapping were coextensive and coterminous with the acts constituting the alleged sexual assault. This court also concluded that the risk of harm the victim faced throughout her hours-long ordeal, while substantial, was not independent of the danger posed to her by defendant's continuous sexual attack.

Accordingly, the State failed to present sufficient evidence to submit the kidnapping count to the jury, and defendant was therefore entitled to a directed verdict of acquittal on that charge. This court's ruling with respect to the kidnapping charge does not affect defendant's convictions for aggravated criminal sexual contact and aggravated assault, and does not affect his sentence to parole supervision for life as a convicted sex offender.

The trial judge terminated the parents' rights, relying upon representations that the grandmother and great aunt were each committed to adopting the children. On appeal, the parents argued the record contained ambiguous hearsay statements by those resource relatives, which arguably indicated they were amenable to or might prefer a kinship legal guardianship ("KLG") arrangement over adoption.

This court upheld most of the trial judge's decision on the statutory factors for termination, but remanded to clarify the record with respect to whether the grandmother and great aunt respectively preferred KLG over adoption.The court construed the policies of the Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7, and the Kinship Legal Guardianship Notification Act, N.J.S.A. 30:4C-89 to -92, to make relevant a resource parent’s preferences as between adoption and KLG. The resource parent's consent to adopt the children in lieu of KLG must be adequately informed, as well as unambiguous, unequivocal, and unconditional.

Defendant New Jersey Manufacturers appeals an order requiring it to reimburse an ambulatory surgical center (ASC) for a Current Procedural Terminology (CPT) code. The Department of Banking and Insurance's medical fee schedule listed the designation "N-1" for this CPT code, meaning it could be performed at an ASC but was "not separately reimbursable because the service [was] included in another procedure." In accord with N.J. Manufacturers Ins. Co. v. Specialty Surgical Center, 458 N.J. Super. 63 (App. Div. 2019), the court holds that the insurer was not required to reimburse the ASC for this CPT code, even though Medicare would permit reimbursement, because the Department's fee schedule did not list any payment amount for the code.

Plaintiff Elmer Branch and the putative class of similarly situated truck drivers appeal the trial court's grant of summary judgment in favor of defendant Cream-O-Land Dairy and dismissal of their class-action complaint alleging a failure to pay overtime wages in violation of the New Jersey Wage and Hour Law ("WHL"), N.J.S.A. 34:11-56a to -56a38. Under the WHL's good-faith defense, an employer is entitled to a complete bar on liability for violations of the WHL if it acted "in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval or interpretation by the Commissioner of the [Department of Labor and Workforce Development] or the Director of the Wage and Hour Bureau, or any administrative practice or enforcement policy of such department or bureau with respect to the class of employers to which he belonged." N.J.S.A. 34:11-56a25.2. The trial court determined that defendant was entitled to the good-faith defense based on its reliance on three determinations made by the New Jersey Department of Labor and Workforce Development ("DOL") officials in response to complaints brought by individual employees.

Considering the legislative purpose and the plain language of the WHL, the court holds, in this matter of first impression, that such discrete determinations by DOL officials – which do not rise to a degree of formality so as to constitute broadly applicable guidance by the DOL and are in any event subject to further administrative appeal – do not constitute an "administrative practice or enforcement policy" and are thus insufficient to invoke the good-faith defense. N.J.S.A. 34:11-56a25.2. Accordingly, the court reverses the trial court's grant of summary judgment and remands for further proceedings..

Plaintiff, a middle school student, was injured while playing in a student-teacher fundraising basketball game. She appeals from an order granting summary judgment and dismissing her claims against defendants, who were her school, the school board, and a teacher. The court affirms because the undisputed facts establish that defendants did not breach a duty of care to plaintiff.

School officials have a duty to supervise the children in their care. Here, there was no showing of a breach of that duty because the basketball game was officiated by a referee and additional supervision was provided by approximately five teachers who did not participate in the game. Moreover, there were no facts showing that the game was being conducted in a reckless or out-of-control manner.

"[T]he duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct." Schick v. Ferolito, 167 N.J. 7, 12 (2001) (alteration in original) (quoting Crawn v. Campo, 136 N.J. 494, 497 (1994)). Here, there was no showing that the teacher-player was intentionally trying to injure plaintiff or acting recklessly.

The Court has significant concerns about the procedure followed in this case. Neither the script set forth on the Miranda card nor the detective’s statement to defendant addressed whether defendant agreed to waive his rights before answering questions. However, any error in the trial court’s admission of the statement was harmless beyond a reasonable doubt because the State presented overwhelming independent evidence of defendant’s guilt. And, although the State should have moved to dismiss the charges on which the jury had deadlocked before the court considered evidence relevant to those charges, the trial court did not abuse its discretion in applying three aggravating factors to impose an extended-term sentence at the high end of the statutory range.

The Court defers to the trial judge’s determination that the disputed footage was played for the jury during the State’s case-in-chief and notes that defense counsel consented to the admission of the surveillance footage depicting the moments surrounding the shooting, including the video segment at issue. The court did not abuse its discretion in permitting the prosecutor to play the video segment during his closing remarks, and the prosecutor’s comments were reasonable and fair inferences supported by the evidence presented at trial.

With two limited exceptions, this court upheld the validity of an Ordinance enacted by the City of Newark, which created a civilian complaint review board (CCRB) in response to an alarming "pattern or practice of constitutional violations" by the Newark Police Department. First, the Ordinance improperly required the Chief of Police to accept the CCRB's findings of fact, absent clear error; and second, it allowed for disclosure of complainant and police officer identities. The practical impact of upholding the Ordinance means that the CCRB can function as intended – providing a vital oversight role – by investigating alleged police misconduct, conducting hearings, developing a disciplinary matrix, making recommendations, and issuing subpoenas.

In this appeal, the court considered whether indigent parents and guardians – once notified that an investigation has substantiated them for child abuse or neglect – are entitled to the appointment of counsel when exercising their right to an administrative hearing to challenge that determination. The court held that, because the potential consequences of such administrative proceedings – including permanent listing in the Child Abuse Registry – are of significant magnitude, counsel must be made available for indigent parents and guardians both at the administrative level and in any appeal of right to this court, just as that right exists in Title Nine actions commenced in Superior Court. The court also determined that until such time as the Legislature addresses this constitutional right, the Madden list may be utilized for the appointment of counsel.

The Court modifies the judgment of the Appellate Division and remands this matter to the OAL for further proceedings to allow the City the opportunity to demonstrate that the hospital records are admissible as business records, and the opportunity to present any other theories of admissibility.

In this appeal, the court examined the scope of available damages when a defendant's negligence has caused a homeowner to be displaced; that is, the court considered whether a homeowner's damages are generally limited to the cost of alternate shelter or whether the homeowner may also seek additional damages based on a broader concept of inconvenience. In adhering to the legal concepts expressed in Camaraza v. Bellavia Buick Corp., 216 N.J. Super. 263, 265 (App. Div. 1987), where the court held a motor vehicle owner's damages were not necessarily limited to the rental cost of a replacement, and in expanding Camaraza to claims other than those involving the loss of use of a motor vehicle, the court reversed the summary judgment entered in favor of the defense and remand for trial.

Plaintiffs sought recusal of assigned trial judge based upon alleged violation of "objectively reasonable" standard of impropriety set forth in DeNike v. Cupo, 196 N.J. 502 (2008) based on the alleged personal animus of the judge against plaintiffs’ counsel. Before becoming a member of the judiciary, the judge had been a candidate for local office in his town approximately 14 years prior. Plaintiffs’ counsel was a member of the opposite party and also resided in the same town and was politically active. Plaintiffs’ counsel alleged that anonymous and other sources had indicated the judge held him responsible for campaign materials which called into question the judge’s character and fitness for office during the campaign in 2004. Plaintiffs’ counsel alleged the judge, when he was county chairman, took action to thwart his renomination to a state commission in 2013 four years before joining the judiciary, which was alleged to evidence the judge’s personal animus. Additionally, the judge had also served as county chairman of his political party for the 6 years prior to joining the judiciary. During this time, the son of the principal member of plaintiff LLC was an elected official in the judge’s home town and a member of the judge’s opposite party during which time the judge, as county chairman, had supported the members of his own party over the principal member’s son.

The court held that, under the DeNike standard, a reasonable, fully-informed person would not have doubts about the judge’s impartiality under the circumstances in this matter. The court considered the lack of a prospective financial benefit to the judge, the remoteness in time of the alleged statements by the judge to the present matter, the lack of evidence of a continuous personal animus, the professional dealings between Plaintiff’s counsel and the judge when he was a practicing attorney, and the fact that Plaintiffs’ counsel’s firm, of which Plaintiffs’ counsel was a named partner, had previously appeared before the judge without objection or incident, all weighed against recusal under the standard. The court also found political motive is not objective evidence of personal animus. The motion to recuse was denied.

The State filed an appeal from a judgment of conviction imposing a probationary sentence on defendant for third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), involving domestic violence, although aggravating factor fifteen, N.J.S.A. 2C:44-1(a)(15), was found by the court and thus a presumption of incarceration applied, N.J.S.A. 2C:44-1(d). Because the State has no authority to appeal from a sentence for a third-degree crime that is statutorily permitted, the court dismissed the appeal.