Opinion Summaries

Plaintiff Mary Richter, a middle school teacher who suffers from diabetes, alleges she fainted while teaching due to low blood sugar levels when she was unable to eat lunch at an earlier class period and suffered significant and permanent injuries. She contends the accident would not have occurred had defendants Oakland Board of Education (the Board) and Gregg Desiderio granted her accommodation request to eat lunch earlier. The motion judge granted defendants' motion for summary judgment dismissing Richter's complaint, denied Richter's cross-motion for summary judgment, and denied reconsideration of the dismissal. The judge held that as a matter of law, Richter failed to prove a prima facie case of failure to accommodate her disability because she did not establish an adverse employment action. Thus, her bodily injury claim, which is the subject of the Board's cross-appeal, was denied as moot.

Under the circumstances of this case, the court reverses the motion judge's grant of summary judgment dismissing Richter's complaint. Based on our consideration of Supreme Court decisions in Victor v. State, 203 N.J. 383 (2008) and Royster v. N.J. State Police, 227 N.J. 482 (2017), the court concludes that Richter need not demonstrate an adverse employment action to establish a prima facie case of a failure to accommodate claim under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Because there were genuine issues of material facts concerning whether Richter was provided an accommodation and whether the accommodation was adequate, which must be determined at a trial, the court affirms the denial of Richter's cross-motion for summary judgment. As to the Board's cross-appeal, the court concludes the Workers' Compensation Act, N.J.S.A. 34:15-1 to -146, does not bar Richter's bodily injury claim, but should she prevail at trial, the Board should receive a credit based on the amount of medical bills and lost wages it paid in her workers' compensation claim in accordance with N.J.S.A. 34:15-40..

In this case, two children under the age of five have been in the continuous care, custody, and supervision of the Division of Child Protection and Permanency due to the abuse and neglect of their parents. The trial court granted the Division's application to vaccinate the children with age-appropriate immunizations over the religious-based objections of the parents. The court granted the mother leave to appeal.

The children are not students. Therefore, the religious-based exemption to immunization of students afforded by N.J.S.A. 26:1A-9.1 and N.J.A.C. 8:57-4.4(a) does not apply. Rather, the matter is governed by the Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6, and N.J.S.A. 9:6-8.86(b), which collectively require that children in placement receive adequate and appropriate medical care to maintain and advance their mental and physical well-being, and N.J.A.C. 3A:51-7.1(a)(2), which specifically requires the administration of all age-appropriate immunizations.

Parental rights are not absolute and must yield to the safety and well-being of the children. While parents do not lose all of their parental rights when their children are placed in the custody of the Division, they are situated differently than parents who retain legal and physical custody. Pursuant to the State's parens patriae responsibility to protect the welfare of children, the Division has a duty to provide appropriate medical care and treatment to children in its custody. This duty encompasses the authority to administer age-appropriate immunizations over the religious objections of the parents. The court perceives no meaningful distinction between the power to order prophylactic medical care in the form of vaccinations to prevent a child from contracting infectious diseases and medical treatment for diseases already contracted.

The circumstances at issue in McKenney, which heavily depended on the prejudice caused to the party disadvantaged by the surprise change in trial testimony, are distinguishable from the change in testimony here. Here there was no demonstration that the changed testimony caused prejudice to T.L., and the plain error standard does not compel reversal, especially because counsel’s failure to object was likely strategic. Under the circumstances, T.L. is not entitled to a new trial.

In this appeal, the court clarifies the standard for evaluating a claim of the work-product privilege. Consistent with the language of Rule 4:10-2(c), the court holds that there is no per se or presumptive rule that materials prepared or collected before litigation are not prepared in anticipation of litigation. Instead, as set forth in Rule 4:10-2(c), there is a multi-part, fact-specific test. The first inquiry is whether the materials were prepared or collected in anticipation of litigation or trial by another party or that party's representative. If so, to obtain the materials, a party must satisfy a two-part standard. The party seeking the materials must (1) show a substantial need for the discovery, and (2) demonstrate that he or she is unable, without undue hardship, to obtain the substantial equivalent of the materials

In this wrongful death case, the defendant liquor store sold vodka and beer to the nineteen-year-old decedent without checking his identification. Decedent and a group of his friends – all of whom were likewise young adults under the legal drinking age of twenty-one – then converged at the home of one of the youths. They drank the purchased alcohol in the young host's bedroom. Decedent then left the house as a passenger in the car of one of the inebriated youths. He died when the driver lost control of the car and it flipped over.

The decedent's estate sued the car driver and its owners for negligence and the liquor store under the Dram Shop Act. The liquor store pled a third-party complaint against the young man who had hosted the gathering and his parents. The trial court granted them summary judgment, finding they had not violated any established legal duty.

Under the circumstances presented, the parents had no statutory or common law duty to prevent their adult son from allowing his adult underage friends to drink alcohol in their home without their proven knowledge or consent. Nor did the son who hosted the gathering have a duty of care under current law.

Addressing 2017 amendments to N.J.S.A. 58:16A-103 (the Act), the court held that the Act allowed defendant to elevate his Sandy-damaged oceanfront townhome for flood safety, despite prohibitions contained in a Declaration of Covenants governing the townhome development. The court rejected plaintiffs' argument that, even if defendant was allowed to raise the elevation of the townhome's first floor, he must maintain the existing height of the roofline by reducing the living space within the townhome. That cramped interpretation, aimed at preserving plaintiffs' ocean view, would defeat the legislative purpose to encourage flood-safe construction after Superstorm Sandy.

The trial courts’ resolution of these matters was correct and consistent with clear rulings from the United States Supreme Court that bind state and federal courts on how challenges such as plaintiffs’ should proceed. Those rulings do not permit threshold issues about overall contract validity to be resolved by the courts when the arbitration agreement itself is not specifically challenged. Here, plaintiffs attack the sales contracts in their entirety, not the language or clarity of the agreements to arbitrate or the broad delegation clauses contained in those signed arbitration agreements. The Supreme Court’s precedent compels only one conclusion: an arbitrator must resolve plaintiffs’ claims about the validity of their sales contracts as well as any arbitrability claims that plaintiffs may choose to raise.

A jury convicted defendant of, among other offenses, two counts of attempted murder. Defendant raised pathological intoxication, N.J.S.A 2C:2-8(e)(3), as a defense, attributable to his use of then legally available synthetic marijuana. The prosecutor, while examining the State's psychopharmacology forensic expert, played portions of defendant's four-hour recorded interview. In summation, the prosecutor played portions of defendant's interview again, arguing that defendant's statements directly undercut the defense. The trial judge did not instruct jurors to limit their use of defendant's statements to assessing the merits of the expert's opinion.

The court vacated the conviction and remanded for a new trial, on the basis that the uncounseled statements were used as direct evidence in the absence of any limiting instruction, thereby violating long-standing precedent. A jury must be told that they may not use as direct evidence information provided by a defendant during a mental status interview with a State's expert.

The Court answers both parts of the first certified question in the affirmative: a life insurance policy procured with the intent to benefit persons without an insurable interest in the life of the insured does violate the public policy of New Jersey, and such a policy is void at the outset. In response to the second question, a party may be entitled to a refund of premium payments it made on the policy, depending on the circumstances.

The court holds that the New Jersey Arbitration Act (NJAA), N.J.S.A. 2A:23B-1 to -32, applies to require arbitration of plaintiffs' wage, hour and payment claims if the Federal Arbitration Act (FAA), 9 U.S.C. §§1-16 does not apply.

Plaintiffs are truck drivers under contract with defendant Strategic Delivery Solutions, LLC (SDS) to deliver products to SDS's customers. The contract provides that disputes are to be arbitrated under the FAA. Plaintiffs contend they are not required to arbitrate their claims because they are engaged in interstate commerce, making them exempt from the FAA under Section one.

The complaint is reinstated and remanded for the trial court to determine if plaintiffs are exempt under section one of the FAA. If the FAA does not apply, the court holds that the FAA does not preempt arbitration under the NJAA. The court also holds that plaintiffs waived a jury trial and the ability to proceed as a class on their wage, hour and payment claims.

Defendant was charged with third degree theft of services for the alleged violation of N.J.S.A. 2C:20-8(a). The indictment resulted from defendant’s use of EZ Pass only lanes on 220 occasions without possessing an EZ Pass transponder. Defendant moved to dismiss the indictment.

The court concluded that the evidence presented to the grand jury was sufficient to establish a prima facie case for violation of the statute. The court first found that traveling through the EZ Pass only lane was a representation that the vehicle operator possessed a valid EZ Pass. The court further held that N.J.S.A. 2C:20-2(b), the theft grading statute, permitted the aggregation of 220 bridge crossings for purposes of establishing that the crime fell within the third degree range. Finally, the court rejected defendant’s argument that the existence of civil penalties precluded criminal responsibility for the same conduct.

ABC Bail Bonds appealed from Judge Paul Innes's decision that Administrative Directive #22-17, "Bail and Bail Forfeitures -- Revisions to Procedures and Forms" (Aug. 7, 2017), was not unconstitutional, could be applied prospectively, and did not effectuate an unlawful material change in the terms of existing surety bond contracts. The panel affirmed, finding the Directive was a lawful exercise of the Supreme Court's authority to administer the criminal justice system, should be applied retroactively, and did not result in a material change to existing contracts, despite the one-year limitation to remission after a defendant fails to appear. In accord with N.J.S.A. 2A:162-8, the Directive retains a trial judge's discretion to decide remission. A judge may, where "exceptional circumstances" can be demonstrated, allow remission beyond a year from the failure to appear.

Tax Court: 160 Chubb Props., LLC v. Twp. of Lyndhurst

Docket Nos.002442-2014; 006305-2015; opinion by Orsen, J.T.C., decided May31, 2019. For plaintiff – Joseph G. Ragno and Robert J. Guanci(Waters, McPherson, McNeill, P.C., attorneys); for defendant –Kenneth A. Porro (Chasan Lamparello Mallon & Cappuzzo, P.C.,attorneys).

Following the court’s decision in 160 Chubb Props., LLC v. Twp. of Lyndhurst, 30 N.J. Tax 613 (Tax 2018), defendant, Township of Lyndhurst, moved for reconsideration, primarily based on the same arguments presented in its opposition to plaintiff’s original motion for relief under the Freeze Act, namely, that increased tenant occupancy; the cost of work to be performed under construction permits; and the sales price of the property, demonstrate prima facie that a substantial and meaningful change in value occurred between the base year 2015 and freeze year 2017, warranting a plenary hearing. Defendant’s only new arguments alleged that plaintiff, 160 Chubb Properties, LLC, had no legal standing to file the Freeze Act motion, and by granting Freeze Act relief for the 2017 tax year, the subsequent owner of the property received a “windfall.” The court found that a motion for reconsideration is not meant to re-litigate issues already decided or otherwise award a proverbial ‘second bite at the apple’ to a dissatisfied litigant. The court also found that defendant ignored the reality that it is the new owner, and not plaintiff, asserting entitlement to Freeze Act relief. Because the 2015 base year judgment caption identifies plaintiff as 160 Chubb Properties, LLC, the new owner was required under R. 8:7(d) to adopt this caption for purposes of making the Freeze Act application. The court additionally found that the new owner not only has standing to seek relief under the Freeze Act, but is entitled to invoke its protections. The court determined that defendant’s “windfall” argument does not represent the legislative intent of the Freeze Act, since the Freeze Act is a legislatively conferred right that attaches to ownership. Accordingly, the court denied defendant’s motion for reconsideration.

The State may appeal a Drug Court sentence only when the sentencing judge makes a plainly mistaken, non-discretionary, non-factual finding under N.J.S.A. 2C:35-14(a). Because application of N.J.S.A. 2C:35-14(a)(9) requires fact-finding and an exercise of the sentencing judge’s discretion, a sentence based on application of that factor is not appealable as an illegal sentence.

The premises on the campus of Kean University where Gourmet Dining, LLC, manages and operates a restaurant and catering facility are exempt from local property taxes because, while Gourmet Dining is a private, for-profit entity, the evidence presented to the trial court establishes that the premises are being used for a public purpose. That evidence shows, among other things, that: Gourmet Dining uses the premises pursuant to a management agreement, not a lease; students and other members of the University community regularly dine at the restaurant; the University views the restaurant as an important recruiting tool for students and faculty members; the restaurant generates management fees which are used for University scholarships; and a substantial percentage of the restaurant's employees are University students.

The 2009 amendments to N.J.S.A. 2C:35-7’s sentencing structure reflect a more flexible sentencing policy that renders Caliguiri’s reasoning no longer viable. The presumption against PTI for second-degree offenders cannot be applied to N.J.S.A. 2C:35-7(a) offenders. And the presumption against PTI for the “sale” of narcotics was not applicable here because defendant was charged with possession with intent to “distribute” and there is no allegation or evidence that he sold the narcotics. The decision to deny defendant’s application must be reevaluated.

The Port Authority Police Benevolent Association, Inc. appealed from an order of the trial court vacating an arbitration award in favor of one of its members. The arbitration award was entered pursuant to the collective bargaining agreement between the Association and plaintiff The Port Authority of New York and New Jersey. The panel determined the Port Authority, as a bi-state public corporate instrumentality, is subject to New Jersey arbitration law and reinstated the award

Plaintiff seeks damages for personal injuries allegedly sustained in an automobile accident. Prior to trial, defendant had the plaintiff examined by a board certified orthopedic surgeon who prepared a written report describing his examination and conclusions. In the report, the physician identified a number of published medical articles that presumably supported the opinions contained in the report. Plaintiff’s counsel demanded that defendant supply copies of the articles. The orthopedic surgeon refused to produce copies of the articles claiming that to provide copies of the articles would violate unspecified copyright laws.

The court ordered the defendant to supply plaintiff’s counsel with copies of the articles within 20 days. If the defendant fails to supply copies of the articles to plaintiff’s counsel within 20 days, the orthopedic surgeon is precluded from referring to the articles during his testimony at trial.

Section 9.1 of the New Jersey Automobile Reparation Reform Act (the No-Fault Act), N.J.S.A. 39:6A-1 to -35, provides insurers, which have paid personal injury protection (PIP) benefits to their insured, with the statutory right to seek reimbursement against certain tortfeasors. N.J.S.A. 39:6A-9.1. If the tortfeasor is insured, the determination whether the insurer that paid the PIP benefits is entitled to recover those payments and the amount of the recovery is by agreement of the parties, and, if they are unable to agree, by arbitration. Ibid.

In this appeal, the non-PIP insurer disputes whether its insured was a tortfeasor. Thus, the question presented is whether that dispute must be arbitrated under Section 9.1 of the No-Fault Act or resolved in a court proceeding. The court holds that the issue of whether a party is a tortfeasor is to be resolved at arbitration when that issue involves factual questions as to the fault or negligence of the insured.

An individual sentenced to a fixed minimum term of parole ineligibility under N.J.S.A. 2C:40-26(c) may not serve his or her sentence intermittently at night or on weekends pursuant to N.J.S.A. 2C:43-2(b)(7).