Opinion Summaries

A construction company and its principal, a resident and taxpayer of Bergen County, filed separate complaints challenging the proposed selection process for a general contractor to rehabilitate the historic Bergen County Courthouse. The City of Hackensack designated the county improvement authority (BCIA) as a "redevelopment entity" pursuant to the Local Redevelopment and Housing Law (LRHL). In turn, the BCIA solicited responses to a request for qualifications (RFQ), which set out the scope of the project and BCIA's intention to enter into a contract with a "redeveloper," the general contractor chosen. The selection process did not require public bidding under the Local Public Contracts Law (LPCL).

The Law Division judge dismissed both complaints, essentially concluding that because the BCIA was acting as a "redevelopment entity," its selection of a "redeveloper" was not subject to the LPCL. He dismissed both complaints with prejudice.

The court affirmed dismissal of the construction company's complaint on procedural and equitable grounds. However, the court reversed dismissal of the individual taxpayer's complaint, concluding that the BCIA generally was subject to the LPCL, and the "goods and services" at issue would normally be subject to public bidding. Although the BCIA was acting as a redevelopment entity under the LRHL, it could not avoid the strictures of the LPCL by simply denominating the general contractor as a "redeveloper." The court remanded the matter to the Law Division to permanently restrain the BCIA from proceeding with the selection process anticipated under the RFQ.

In this post judgment matrimonial appeal, the court addressed whether a trial court may determine that plaintiff's obligation to pay defendant previously awarded counsel fees was non-dischargeable as a domestic support obligation in any future federal bankruptcy proceeding pursuant to 11 U.S.C. § 523(a)(5) (Section 5). Defendant had twice tried unsuccessfully to discharge obligations in the bankruptcy court, thus, despite the lack of a pending bankruptcy proceeding, there was clearly an ongoing dispute as to the payment of counsel fees, which presented an actual controversy over which the trial court had jurisdiction. The court held the lack of a filed bankruptcy action does not bar review of non-dischargeability when the record itself presupposes it, as it did here.

Pursuant to 11 U.S.C. § 1328(a)(2), domestic support obligations as defined in Section 5 are not dischargeable in bankruptcy cases filed under Chapters 7, 11, 12, or 13 of the Bankruptcy Code. However, obligations arising solely under Section 15 may be dischargeable in Chapter 13 filings. 11 U.S.C. § 1328(a)(2). The court held the trial judge properly determined the counsel fee award to be non-dischargeable as a domestic support obligation. The underlying matter involved defendant's attempt to preserve his ability to visit with his daughters regularly, despite plaintiff's attempt to relocate them across the country. Accordingly, the trial court further established that the funds in this matter could have been used for the children's support including tuition and child support payments, such that the counsel fee award was tantamount to an award of support for the benefit of the children.

Plaintiff appealed from an administrative determination of the Board of the Teachers' Pension and Annuity Fund (TPAF) rejecting her request that a portion of interest payments owed on her pension loan be waived. In 2004, plaintiff secured a $26,860 pension loan from TPAF and retired after having made two payments through payroll deduction. The Division of Pensions and Benefits (Division) did not deduct plaintiff's loan payments from her distributions once she had retired, and she did not inquire about her loan repayment status between 2004 and 2017.

In September 2017, the Division notified plaintiff that an audit of pension loans revealed she owed an outstanding balance of $25,973.83 plus additional accrued interest of $21,227, for a total of $47,200.83 and that it would begin deducting loan payments from her monthly retirement allowance to cover the repayment of principal and interest. Plaintiff offered to repay the remaining balance and five years of interest, at four percent, in a lump sum payment if the Board of Trustees for TPAF (Board) would waive the interest accrued after the original five-year term. The Board rejected her offer and denied her request to waive the accrued interest assessed on her outstanding loan obligation. Notably, the State had entered into a closing agreement with the Internal Revenue Service (IRS) under which outstanding pension loans, plus interest, would be repaid to State-administered retirement systems, including TPAF, to protect their tax-qualified status. Plaintiff appealed the Board's determination.

The trial court affirmed the Board. The Internal Revenue Code, § 72(p), N.J.S.A. 18A:66-35, N.J.S.A. 18A:66-35.1, and N.J.S.A. 18A:66-63 controlled the interest obligation, even though it was the Division's fault the payments were not deducted from plaintiff's pension checks.

When a pension loan is not repaid within five years of its distribution, the loan funds are essentially converted to taxable income as a "deemed distribution." I.R.C. § 72(p)(2)(B) sets forth an exception from a taxable deemed distribution for a loan from a qualified employer plan, provided the loan is repaid within five years. I.R.C. § 72(p)(1) ("If during any taxable year a participant or beneficiary receives, directly or indirectly, any amount as a loan from a qualified employer plan, such amount shall be treated as having been received by such individual as a distribution under such plan."). Repayment of interest to TPAF is crucial to maintain the pension plan's tax-qualified status.

The Board's decision was not arbitrary, capricious, or unreasonable. The Board's decision comported with the IRS requirement that TPAF collect a sum sufficient to repay the amount borrowed with interest thereon.

Tax Court: Senior Citizens United Community Services v. Dir., Div. of Tax’n; Docket Nos. 008789-2019 and 005999-2020, opinion by Cimino, J.T.C., decided July 1, 2021. For plaintiff – Dale W. Keith (Keith & Keith, attorneys).; for defendant – Jamie M. Zug (Gurbir S. Grewal, Attorney General of New Jersey, attorney).

Held: The Motor Fuel Tax and the Petroleum Products Gross Receipts Tax provide an exemption for special and rural transportation services provided by "autobuses." The parties disagree as to whether a definition of autobus found in Title 48 (Public Utilities) is incorporated into Title 54 (Taxation). Reviewing the legislative history as well as the wording of the amendments to the exemption statute over the years, the court held that the Legislature did not intend to incorporate the definition of autobus found in Title 48 into Title 54. As a result, the taxpayer qualifies for the exemption.

In this one-sided appeal, plaintiff-landlord Talmadge Village LLC challenges the trial court's stay of the October 8, 2020 order ejecting defendant Keith Wilson from the apartment he shared with Talmadge's former tenant and restoring possession to the landlord. The lease had expired, defendant was never on the lease, and he never notified the landlord he lived there.

Plaintiff initiated an ejectment action to have defendant removed from the apartment. Following a hearing during which both parties participated, the trial court issued an order for possession in plaintiff's favor and directed defendant to vacate the premises. The judge then stayed enforcement of his order "pursuant to Executive Order 106 and P.L. 2020, c. 1 for the duration of the moratorium imposed thereby." Because the court concludes the governor's moratorium on evictions, as set forth in Executive Order 106, does not extend to persons having the legal status of squatters, the court vacates the stay.

Even though plaintiff marshaled considerable evidence demonstrating that his ex-wife has been in a fourteen-year relationship with another man, with whom she has traveled extensively and attended numerous family events, that she recently stayed in his home for a number of uninterrupted months, and that the other man has repeatedly described defendant as "my wife" in social media postings, the trial judge denied plaintiff's motion to modify or terminate alimony based on the contention that defendant had either remarried or was cohabiting. The court reversed, finding there was a genuine factual dispute about whether defendant had remarried and that plaintiff presented a prima facie case of cohabitation that warranted discovery and an evidentiary hearing. In so holding, the court rejected the notion that Landau v. Landau, 461 N.J. Super. 107, 118-19 (App. Div. 2019) created a template for what constitutes a prima facie case of cohabitation, and concluded that a prima facie case is determined by the central thesis of cohabitation without the need for an affirmative showing on all the items listed in N.J.S.A. 2A:34-23(n). The court therefore held that a prima facie case is made when, assuming the truth of the movant's allegations and providing the movant with all reasonable inferences, the opponent appears to be in "a mutually supportive, intimate personal relationship" in which the new couple "has undertaken duties and privileges that are commonly associated with marriage or civil union." N.J.S.A. 2A:34-23(n).

Celeste Fernandez was one of four candidates in the November 3, 2020 election for two Commissioner at Large (CAL) positions in Atlantic County. Fernandez placed third, 381 votes behind John W. Risley, Jr. Fernandez filed a petition with the Law Division seeking a recount pursuant to N.J.S.A. 19:28-1.

The State had selected the Atlantic County CAL election as one that would be subject to an audit in which two percent of the ballots cast would be recounted. The audit reduced Risley's margin of victory over Fernandez by one vote. However, the State's audit indicated there were errors in the identification of overvotes (where the voter selects more than two candidates for the CAL position and no vote is counted) and undervotes (where the voter selects one or no candidate for the CAL position).

The trial court ordered an audit or recheck of two additional four percent of the votes, using the same procedures that the Board had used in the State-mandated audit. The combined results of the initial audit and court-ordered recheck indicated that 1,297 votes originally tallied as overvotes or undervotes had been recounted, and seventy-four votes were changed to recorded votes for candidates.

The court rejected Fernandez's contention that she was entitled to an automatic right to a recount pursuant to N.J.S.A. 19:28-1. We held that to obtain a recount pursuant to the statute, a candidate must present sufficient credible evidence to show there is reason to believe an error was made in the counting of the votes, and the court should order a recount if the claimed error could affect the outcome of the election.

Here, Fernandez presented sufficient evidence establishing that there is reason to believe an error was made in the counting of the votes for the CAL election, specifically the votes initially recorded as overvotes or undervotes. We therefore conclude the trial court mistakenly exercised its discretion by denying Fernandez's request for a machine re-scanning of all ballots cast in the CAL election, and a hand recount of all votes identified as overvotes or undervotes.

Appellant won the November 2020 election for the Atlantic County Third District County Commissioner race defeating her opponent by 286 votes. The election was primarily a vote-by-mail election pursuant to Executive Order and subsequently enacted legislation.

Appellant's opponent contested the election results because the Atlantic County Clerk sent incorrect ballots that failed to list the Third District County Commissioner race to a segment of voters, which totaled more than the margin of victory. Among other grounds, the opponent contested the election pursuant to N.J.S.A. 19:29-1(e), which permits a challenge "[w]hen illegal votes have been received, or legal votes rejected at the polls sufficient to change the result . . . ." Appellant argued the court could not overturn the election because pursuant to N.J.S.A. 19:63-26, "[n]o election shall be held to be invalid due to any irregularity or failure in the preparation or forwarding of any mail-in ballots prepared or forwarded pursuant to the provisions of [the Vote By Mail Law]." The Law Division Judge granted the relief sought by the opponent, revoked appellant's certificate of election, declared a vacancy, and scheduled a special election for the position.

On appeal, the court affirmed the Law Division's decision, and in a case of first impression held, N.J.S.A. 19:63-26 establishes a rebuttable presumption that limits the ability to invalidate an election due to any irregularity or failure in the preparation or forwarding of any mail-in ballots. However, a contestant may rebut the presumption by asserting one or more of the grounds under N.J.S.A. 19:29-1 as a basis to invalidate the election. An election shall be set aside if the trial judge concludes the contestant has proved a basis to do so under N.J.S.A. 19:29-1 by a preponderance of the evidence and the judge finds that no person was duly elected, as per N.J.S.A. 19:29-9.

The Court affirms the decision to deny the Tax Collector qualified immunity. Based on the summary judgment record, the Tax Collector’s refusal to provide the redemption amount to plaintiffs because the request was not in writing or timely made was not objectively reasonable. The Court disagrees, however, that plaintiffs have not established the basis for municipal liability. The Tax Collector is the final policymaker on matters related to the redemption of tax sale certificates in the Borough. The Borough is liable if the Tax Collector violated the constitutional or statutory rights of plaintiffs.

The denial of J.K.’s application was not arbitrary, capricious, or unreasonable. J.K’s submissions to the Parole Board were inadequate to secure the relief sought. To the extent that J.K. has refined and updated his application, his recourse is before the Parole Board, which has the necessary expertise to assess the quality of his new submissions under its Policy # 09.821.

Defendant's firearms were seized following entry of a temporary restraining order against him pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The court entered a final restraining order (FRO) following a trial, but later granted defendant's motion for reconsideration, vacated the FRO, and, following a second trial, dismissed the domestic violence complaint because the plaintiff did not sustain her burden of proving an entitlement to an FRO.

Following entry of the FRO, the State moved for forfeiture of defendant's weapons under the PDVA. Notwithstanding the subsequent dismissal of the FRO, the State argued it was entitled to forfeiture under N.J.S.A. 2C:25-21(d)(3) because N.J.S.A. 2C:25-29(b), which requires that domestic violence FROs include a minimum two-year bar on a defendant's possession and ownership of a firearm, resulted in a disability under N.J.S.A. 2C:58-3(c)(6), which prohibits the issuance of a handgun purchase permit or firearms purchaser identification card to a person who is "subject to" a PDVA restraining order prohibiting possession of a firearm. The motion court denied the State's forfeiture application, and the State appealed.

The court affirms the motion court's denial of the forfeiture application. The court holds an FRO that is vacated as improvidently granted in the first instance does not support the otherwise mandatory bar under N.J.S.A. 2C:25-29(b), and therefore does not result in a disability under N.J.S.A. 2C:58-3(c)(6) permitting forfeiture under N.J.S.A. 2C:25-21(d)(3).

In this negligence and products liability action involving plaintiff's ingestion of one of defendant's products, SHED RX, a diuretic, which contained a substance banned by the World Anti-Doping Agency, this appeal required the court to reiterate well-settled principles set forth in Rule 4:50-1 relative to motions to vacate default judgments. The court also reviewed the standard for calculating damages under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -226 for plaintiff's claims of lost wages and income, reputational damages, and infliction of emotional distress, ascertainable loss, and trebling of damages.

Because defendant was aware of the letter and the circumstances relevant to this appeal for nearly twenty-five years, yet provides no evidence -- and made almost no effort to uncover evidence -- that police interviewed Theresa after production of the letter, the trial court did not abuse its discretion in denying defendant’s post-conviction discovery request.

If a charter school’s "district of residence demonstrates with some specificity that the constitutional requirements of a thorough and efficient education would be jeopardized" by the diversion of district funding to a charter school, the Commissioner must "evaluate carefully" the question of fiscal harm. In re Englewood on the Palisades Charter Sch. (Englewood), 164 N.J. 316, 334-35 (2000). Here, however, the District made no such preliminary showing. The Court declines to depart from the governing standard simply because the District is a former Abbott district or because the District was State-operated at the time of the charter school applications.

In this case of first impression in New Jersey, the court considers whether N.J.S.A. 34:15-95.5 requires a triennial redetermination of petitioners' combined awards of state workers' compensation total disability benefits and social security disability benefits (SSD) as is done under 42 U.S.C. § 424a.

Under both N.J.S.A. 34:15-95.5 and 42 U.S.C. § 424a, a petitioner is limited to the amount they can simultaneously collect from SSD and state workers' compensation benefits. If the combined monthly total benefits of SSD and state workers' compensation benefits exceeds eighty percent of the petitioner's pre-disability average current earnings (ACE), SSD is reduced. Under 42 U.S.C. § 424a, Social Security receives the benefit of the offset.

In 1980, New Jersey enacted a law authorizing the reduction of the workers' compensation award instead of SSD when determining the simultaneous collectability of benefits. Therefore, New Jersey is a reverse offset state, meaning that the employer, insurance carrier, or Second Injury Fund gets the benefit of the offset, not Social Security.

42 U.S.C. § 424a(f) requires a triennial redetermination of benefits. N.J.S.A. 34:15-95.5 does not. Petitioners contend our Legislature intended to adopt the federal triennial redetermination provision. However, the plain language of N.J.S.A. 34:15-95.5 does not include a redetermination of benefits. And the legislative history is similarly silent. See Sponsor's & Lab. Comm. Statement to A. 1206 1-17 (L.1980, c. 83). Moreover, 42 U.S.C. § 424a(d) explicitly states that a triennial redetermination is not applicable in reverse offset states.

Because our Legislature did not include a cost-of-living increase in the statute, and the federal statute exempts reverse offset states from reviewing its benefits triennially, we affirm the order denying a redetermination of benefits and for the reimbursement of overpayment of benefits.

The New Jersey Education Association challenged a regulation of the Public Employee Retirement System Board that amended the definition of "willful negligence." The definition is important because a public employee seeking an accidental disability pension must prove that his or her disability did not result from his or her willful negligence. The court invalidates the regulation because it strays from the Legislature’s intent to include an element of recklessness in "willful negligence," and because the regulation’s plain language contradicts the Board’s own reasoning in defense of its proposal.

In this appeal, the court addresses the relatively rare set of facts requiring a self-defense jury instruction when a defendant is charged with unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5(d). A jury convicted defendant of fourth-degree unlawful possession of a weapon, which was a knife. Defendant argues that the jury instruction on the charge was improper because it did not include his request for a self-defense instruction. The court agrees and reverses his conviction because the jury could have found self-defense was a justification for defendant's possession of a knife, which he testified he possessed for use at work and only took out spontaneously in self-defense. Defendant's other arguments are without merit or moot.

Because MPD officers create the information contained in the CDR-1s, the CDR-1s fall well within OPRA’s definition of a government record. Further, AADARI’s records request is narrowly tailored and would not constitute research beyond OPRA’s scope.

At a motion for summary judgment, courts view the evidence in a light most favorable to the non-moving party -- in this case, Rios. And the Court considers the remarks from the perspective of a reasonable Hispanic employee in Rios’s position. Under all the circumstances, a rational jury could conclude the demeaning and contemptuous slurs, allegedly uttered by a direct supervisor, were sufficiently severe or pervasive to create a hostile work environment in violation of the LAD.

Pursuant to the facts of this case, a reasonable 17-year-old in defendant’s position would have believed he was in custody and not free to leave, so Miranda warnings were required. It was harmful error to admit his statement at trial.