Opinion Summaries

Tax Court: 3 University Plaza SPE, LLC/3 Univ. Plza SPE % Normandy RE P v. Hackensack City; Docket Nos. 005002-2014, 001670-2015, 003553-2016, 001163-2017, 003768-2018, and 012891-2019, opinion by Novin, J.T.C., decided February 24, 2022. For plaintiff – Michael J. Caccavelli and Grace Chun (Pearlman & Miranda, LLC, attorneys); for defendant – Kenneth A. Porro (Chasan Lamparello Mallon & Cappuzzo, P.C., attorneys).

The court found that no globally accepted practice has been adopted for the handling of tenant improvement allowances and leasing commission expenses under reconstructed operating statements. For local property tax valuation purposes, the decision to include or exclude tenant improvement allowances and leasing commissions, as stabilized operating expenses, is a function of context, the market, and the intended use of the appraisal report. The characterization of tenant improvement allowances and leasing commissions must be based on the appraiser’s examination of a property’s historical operations, and evaluation and analysis of market conditions. When tenant improvement allowances and leasing commission expenses are necessary to achieve economic or market rent, stabilize occupancy, and maintain a property’s value, they may be treated as operating expenses and deducted from effective gross income in calculating net operating income. However, an appraiser may reject certain expenses, including tenant improvement allowances and leasing commissions, when they are erratic, uncharacteristic, and not typical in the market or industry. Here, the court concluded that plaintiff’s expert’s approach, deducting tenant improvement allowances and leasing commissions as "above-the-line" stabilized operating expenses, was reasonable and supported by the trial record. The court further concluded that the Band of Investment technique provided the most accurate and reliable method of deriving a capitalization rate because it is not polluted or impacted by questions of how potential survey recipients perceived hypothetical transactional questions or how a market perceives an annually reoccurring operating expense. Finally, in reducing the property’s 2014 and 2015 tax assessments, the court found that the subject property’s 2019 sale was not credible evidence of true or fair market value. The court scheduled the 2016, 2017, 2018, and 2019 tax year matters for further proceedings.

During the parties' divorce proceedings defendant was declared incapacitated due to a breakdown and multiple psychiatric hospitalizations. Following an investigation and filing of a complaint in the Probate Part by the guardian ad litem, the parties' adult children were appointed as co-guardians for defendant. The guardians, assisted by the guardian ad litem and an experienced divorce attorney, settled the case, and entered a comprehensive PSA.

Nearly two years after the divorce, the Probate Part deemed defendant competent and dissolved the guardianship. Approximately one year after dissolution of the guardianship defendant filed a Rule 4:50-1(f) motion to declare the PSA invalid. She argued her children should not have been appointed co-guardians because they were financially dependent on plaintiff and controlled by him and engaged in misconduct. The Family Part judge denied the motion.

On appeal, the court held the appointment of a party's adult child to serve as their guardian in a divorce proceeding pursuant to Rule 4:26-2(a) does not in itself render the subsequent settlement of the case unconscionable. The party seeking to undo the settlement must demonstrate misconduct by the guardian and that the settlement is unconscionable.

In this opinion, the court examined the newly enacted legislative changes in the Legal Parentage Act, N.J.S.A. 9:17-69 to -71, which created a streamlined process for same-sex couples to obtain a co-parent adoption. Petitioners G.A.S. and M.A.S., a same-sex couple, sought a Judgment of Adoption pursuant to the streamlined procedures under the Legal Parentage Act and for the Atlantic County Surrogate’s Court to process the family’s adoption complaint without requiring background checks and a home study. The court’s opinion highlighted the New Jersey Supreme Court’s Order issued on May 26, 2020, and the Notice to the Bar issued on June 4, 2020, by the Administrative Office of the Courts, which outlined the streamlined process of establishing the legal parentage of a non-biological parent under the new statute. The Court concluded that Petitioners satisfied all three requirements under N.J.S.A. 9:17-71(b), and the court entered a Judgment of Adoption.

While plaintiff was driving his car on a road owned by Passaic County, a falling tree limb struck his car, causing him to suffer significant injuries. The tree with the broken limb was located in a 35,000 acre conservation easement owned by the City of Newark. The trial judge granted summary judgment to the City relying, in part, on the Landowner's Liability Act (LLA), N.J.S.A. 2A:42A-1 to -10. The judge also granted summary judgment to Passaic County, which had been sued under the Tort Claims Act.

The court held N.J.S.A. 2A:42A-8.1 of the LLA, entitled "[l]iability to persons injured on premises with conservation restriction," precluded the imposition of liability against the City. The statute provides immunity to an owner of premises on which "a conservation restriction is held by the State, [or] a local unit . . . and upon which premises subject to the conservation restriction public access is allowed, or of premises upon which public access is allowed pursuant to a public pathway or trail easement held by the State, [or] a local unit . . . ."

Because plaintiff's car travelled on a road providing public access and serving as a public pathway and the tree with the fallen limb stood within a conservation easement, the City was entitled to immunity under the LLA. The County likewise was properly granted summary judgment because the alleged dangerous condition was not on its property. N.J.S.A. 59:4-2.

Appellant A.B.C.-C. is a transgender man who sought to change his name to conform his identification documents with his gender identity. As part of his application, appellant submitted evidence showing transgender people are subject to a particularized threat to their safety based upon their identity and asked that the record of his name change be sealed to protect him from such discrimination and violence. The trial court denied appellant's request. Because appellant demonstrated good cause to seal the record, the court reversed the trial court's denial of appellant's motion, ordered that the record be sealed, and remanded for any necessary further proceedings.

Plaintiff appeals from an order compelling arbitration and dismissing with prejudice his discrimination complaint against his former employer and two of its employees. This appeal presents an issue of first impression in this court: whether the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, pre-empts a 2019 amendment, adding N.J.S.A. 10:5-12.7 (Section 12.7), to New Jersey's Law Against Discrimination (LAD). Section 12.7 prohibits the waiver of procedural and substantive rights under LAD. The court holds that the arbitration agreement is enforceable, and that the FAA pre-empts Section 12.7 of LAD when applied to an arbitration agreement governed by the FAA. The court affirms the portion of the order compelling arbitration, but remands for entry of a new order that stays the litigation pending the arbitration.

This non-dissolution case concerns a question of first impression in New Jersey regarding a threshold inquiry to the application of the Hague Convention on the Civil Aspects of International Child Abduction ("Convention"). Specifically, this case addresses whether accession by the child’s country of habitual residence mandates application of the Convention where the United States has not yet accepted that accession.

In early 2020, A.R. and the child left the Philippines—the child’s country of habitual residence—for the United States. J.R. filed an application seeking the child’s return pursuant to the Convention. Although the United States’ status as a Contracting State to the Convention was patent, the Philippines did not accede to the Convention until March 2016. The United States has not accepted that accession.

Articles 35 and 38 of the Convention collectively provide that for a non-Contracting State that accedes to the Convention, such "accession will have effect only" where the other country has "declared their acceptance of the accession."

Based on the clear, express, and unambiguous language of Articles 35 and 38, analogous federal and state precedent, and scholarly consensus, the court holds that where the United States has not accepted another country’s accession to the Convention in accordance with Articles 35 and 38, the court lacks jurisdiction to enforce the Convention’s prompt return protocols.

In August 2018, fourteen-year-old Olivia Checchio went to Sky Zone South Plainfield—an indoor trampoline park—with four friends and Gina Valenti—the mother of one of the children. Upon arrival at the park, Valenti signed an agreement that included an arbitration provision, under which the signing adult on behalf of the minor child waived a jury trial and agreed to arbitrate any dispute or claim arising out of the child's use of the Sky Zone premises.

The trial court, relying on this court's recent decision in Gayles v. Sky Zone Trampoline Park, 468 N.J. Super. 17, 21-22 (App. Div. 2021), denied defendants' motion to dismiss the complaint and compel arbitration.

Defendants moved for reconsideration, producing for the first time five agreements signed by Olivia's mother, Lisa, when she took Olivia to the park in 2016. Defendants asserted Gayles was distinguishable from the circumstances here because the 2016 agreements demonstrated a pattern of prior conduct, and, therefore, establish apparent authority.

The court noted the 2016 agreements contained different language than the 2018 agreement. The 2016 agreements did not vest Valenti with the authority to enter into the 2018 agreement or any future agreement on Olivia's behalf. Nor did the 2016 agreements manifest any understanding on Lisa's part that Valenti or any other adult could sign a future waiver agreement in the place of Lisa or on Olivia's behalf.

The court found there was no evidence demonstrating that Lisa would have signed the 2018 agreement. And, Lisa's prior execution of the 2016 agreements did not establish a pattern that she would authorize another person to sign an agreement on behalf of her daughter. Therefore, the court held the 2016 agreements did not establish Valenti had apparent authority to waive Olivia's trial rights under the 2018 agreement.

N.J.S.A. 2C:24-8(a) imposes criminal liability on those who have "assumed continuing responsibility for the care of a person 60 years of age or older" and who "abandon[] the elderly person . . . or unreasonably neglect[] to do or fail[] to permit to be done any act necessary for the physical or mental health of the elderly person." In reversing, the court held that a conviction under this statute cannot be sustained when the defendant's conduct was alleged to be a physical assault. The Legislature intended instead to criminalize neglect, abandonment, and failures to act, not an assault, which is criminalized elsewhere in the criminal code.

Appellants challenge the Governor's Executive Order 283, which imposes a COVID-19 vaccination mandate for, among others, the State's corrections officers. The court held that the Civilian Defense and Disaster Control Act, N.J.S.A. App. A:9-33 to -63, empowered the Governor to issue the order and that the order's vaccination mandate was rationally and adequately tailored to the problem posed.

The Court agrees with the trial court that plaintiffs’ new theory should not have been considered given its late presentation. The Court nonetheless holds, for completeness, that plaintiffs’ new theory did not raise an issue of material fact. The Court reinstates summary judgment in favor of defendants and dismisses the complaint with prejudice. The Court also finds that Earle is entitled to derivative immunity.

Defendant’s question about the attorney was an ambiguous invocation of her right to counsel. Under settled New Jersey law, see, e.g., State v. Reed, 133 N.J. 237, 253 (1993), the detective was required to cease questioning and clarify whether defendant was requesting counsel during the interview. Because the State played defendant’s recorded statement at trial and read the apology note -- written at the detective’s suggestion -- to the jury, the error in failing to suppress that evidence was harmful. The Court also finds plain error in the trial court’s admission of certain challenged evidence, and it provides guidance for the proceedings on remand.

Plaintiff, which contracted to purchase a large tract of vacant land from Hovbros Burlington, alleged in this action that defendant TD Bank tortiously interfered with that contract by foreclosing its mortgage on the property. The trial judge dismissed for failure to state a claim.

In affirming in part, the court held that the foreclosure sale cut off plaintiff's unrecorded contract interest and thereby eviscerated plaintiff's continuing claim of a legal or equitable interest in the property despite an assumption of TD Bank's knowledge of plaintiff's contract rights when TD Bank foreclosed. In this regard, the court rejected the holding of a published trial court decision, PNC Bank v. Axelsson, 373 N.J. Super. 186 (Ch. Div. 2004), which found relevance in the application of N.J.S.A. 2A:50-30 when a foreclosing party has knowledge of an unrecorded interest.

In reversing in part, the court held that plaintiff could continue to seek damages on its tortious interference claim against TD Bank based on its theory, which the court was obligated to assume as true, that TD Bank manipulated its rights as to Hovbros and its related companies so as to interfere with plaintiff's contract rights.

The Three Strikes Law and the mandatory life-without-parole sentence imposed upon defendant under that statute do not violate the constitutional prohibition on cruel and unusual punishment. Further, Miller and Zuber have no application to adult defendants sentenced under the Three Strikes Law.

This interlocutory appeal arises from an ongoing prosecution for strict liability for drug-induced death, N.J.S.A. 2C:35-9, following a fatal heroin overdose. The State appeals from a trial court order suppressing incriminating statements defendant made during a stationhouse interrogation because the officers did not advise him that a death had occurred and that he was facing prosecution for a first-degree homicide offense. The trial court had initially held the statements were admissible but granted defendant's motion for reconsideration that cited to the majority opinion in State v. Sims, 466 N.J. Super. 346 (App. Div.), certif. granted, 246 N.J. 146 (2021). While the parties and the trial court knew that the Supreme Court had granted certification, they appeared to be unaware that the Supreme Court had stayed the Sims opinion.

In Sims, the majority announced a new per se rule that when police make an arrest following an investigation, they must at the outset of a custodial interrogation advise the interrogee of the offense(s) for which he or she was arrested regardless of whether a complaint-warrant or arrest-warrant has been issued. 466 N.J. Super. at 367. The question to be addressed by the Supreme Court is: "[w]ere the officers required to advise defendant, who was not charged with any offenses at the time, why he was arrested before proceeding with the custodial interrogation."

In the present case, the court follows an alternate analytical route that does not depend on the outcome in Sims. The court leaves to the Supreme Court to decide whether police may remain silent during a Miranda colloquy with respect to the essence of unfiled charges for which the interrogee was taken into custody. Rather, the court focuses on the impact of the police decision in this instance to advise defendant of the reason for his arrest in a manner that was misleading. Under this analytical approach, the failure to advise defendant of the overdose death was a relevant factor to be considered in determining whether defendant's waiver of Miranda rights was made knowingly.

The court concludes, considering the totality of the circumstances, the State failed to prove beyond a reasonable doubt that defendant's waiver of his right against self-incrimination was made knowingly because the detectives affirmatively misled defendant by providing a deliberately vague and incomplete answer to his question of why he was taken into custody. The court reasons that it is one thing for police to withhold information; it is another thing entirely for them to provide an explanation that creates or reinforces a false impression.

The court recognizes that police are permitted, within limits, to use trickery or deception in the course of a custodial interrogation. The court draws a fundamental distinction, however, between police trickery with respect to the strength of the evidence against an interrogee on the one hand, and trickery with respect to the seriousness of the offense(s) for which he or she was arrested on the other hand. While police are allowed to use certain forms of trickery following a knowing and voluntary Miranda waiver, the court finds no New Jersey precedent that authorizes trickery as part of the waiver process. Indeed, the court notes that Miranda v. Arizona expressly held that "any evidence that the accused was . . . tricked . . . into a waiver will, of course, show that the defendant did not voluntarily waive his [or her] privilege." 384 U.S. 436, 476 (1966).

The court adds that affirmatively misleading an interrogee about the seriousness of the offense for which he or she was taken into custody strikes at the heart of the waiver decision. The court does not, however, propose a categorical, per se rule that any deception or trickery of this type automatically warrants suppression. Rather, the court holds that the use of such a stratagem is an important factor to be considered as part of the totality of the circumstances in determining whether the State has met its burden of proving, beyond a reasonable doubt, that defendant made a knowing waiver of his right against self-incrimination.

Finally, the court rejects the State's argument that the detectives did not have probable cause to charge defendant with the strict liability for drug-induced death offense pending the completion of autopsy and toxicology reports. Applying de novo review, the court concludes that the detectives were aware of facts constituting probable cause that defendant committed the strict liability homicide offense, viewed from the standpoint of an objectively reasonable police officer.

Following the dismissal of a chancery action against them that sought a constructive trust on the proceeds of a sale of real property, plaintiffs filed a complaint against the prior suitor, alleging, among other things, the tortious interference with their contract to sell the real property. The prior suitor sought dismissal, arguing her earlier claim was cloaked by the litigation privilege. The trial judge held that the complaint and other pleadings were insulated by the litigation privilege but not the notice of lis pendens, which had been recorded but discharged in the earlier action.

In permitting review of that interlocutory disposition, the court affirmed in part and reversed in part, holding that the notice of lis pendens – a mere statement of the complaint's claims – was insulated by the litigation privilege, but the litigation privilege did not absolve the prior suitor of the consequences of having filed that earlier suit; in other words, the litigation privilege protected the prior suitor's statements and communications in the earlier judicial proceeding but did not protect her from a later action based on the allegation that the earlier suit was frivolous, vexatious or tortious.

Tax Court: Erez Holdings Urban Renewal, LLC, v. Director, Division of Taxation and Township of Lakewood, Docket No. 013941-2018, opinion by Sundar, P.J.T.C., decided February 1, 2022. For plaintiff - Catherine J. Bick (Giordiano Halleran Ciesla PC, attorneys); for defendants - Joseph Palumbo, Anthony D. Tancini (Andrew J. Bruck, Acting Attorney General of New Jersey, attorney); Harold H. Hensel (Secare & Hensel, attorneys).

Held: Plaintiff’s contention that the Non-Residential Development Fee (NRDF) imposed under N.J.S.A. 40:55D-8.4 should be computed by attributing $0 to equalized assessed value of the improvements because they are exempt from local property tax under the Long - Term Tax Exemption law, N.J.S.A. 40A:20-1 to -22, is rejected based on the plain language of the NRDF statute. The amount to be excluded for the parking lot when computing the NRDF is its value as determined under the accepted methods employed for valuing all real property in the local property tax arena (cost, income, comparable sales). The court’s standard of review of the assessor’s value determination of the parking lot for purposes of its exclusion when computing the NRDF, is the same as in local property tax matters. Thus, a presumptive correctness attaches to the assessor’s determination with the burden of proof upon the property owner to overcome the same and persuade the court that the exclusion amount should be different. Here, based on the evidence provided, plaintiff failed to persuade the court that the value of the parking lot to be excluded for purposes of calculating the NRDF should be $3,407,000. The court therefore affirms the final determination of defendant, Director, Division of Taxation, that the assessor of defendant, Township of Lakewood, correctly determined the NRDF.

The court permitted defendants in this medical malpractice action leave to appeal the trial court's denial of their motions for partial summary judgment on plaintiff's claims for breach of contract and hospital policy based on a third-party beneficiary theory as well as his claims for negligence per se for defendants' alleged violation of the hospital policies incorporated into those contracts. Because well-established precedent makes clear neither cause of action is available to plaintiff in this case as a matter of law, the court reversed the orders and remanded for entry of partial summary judgment for defendants dismissing those claims.

On January 24, 2020, defendant ordered a floral arrangement that was to be delivered to his former girlfriend on February 13, 2020. One week after the order was placed, a temporary restraining order (TRO) was entered against defendant, prohibiting him from having contact with his former girlfriend. Defendant made no effort to cancel the delivery, which did not occur until after the entry and service of the TRO on defendant. Defendant was charged with contempt for violation of a TRO entered pursuant to the Prevention of Domestic Violence Act.

Following trial, it was determined that the State was not able to satisfy its burden of proving beyond a reasonable doubt that defendant "purposely or knowingly" violated the TRO, and the complaint was dismissed. Since the TRO had not yet been entered at the time the defendant ordered the flowers, he could not have possessed the requisite mental state for a finding of contempt.

Similarly, the argument that defendant had an affirmative obligation to recall the communication initiated prior to his having been served with the TRO was rejected, because the TRO provided no notice of any such requirement.

This appeal presents an issue of first impression—whether DNA evidence obtained from extremely small amounts of DNA through a technique known as low copy number (LCN) DNA testing, and in one instance, by using a proprietary Forensic Statistical Tool (FST) software program, which defendant contends are not generally accepted in the relevant scientific community, was improperly admitted at trial.

Defendant was indicted for the murder of a woman he had recently visited, that worked at his father's business. Her partially burned body was found in her residence. She died from blunt force head injuries. As part of their investigation, detectives obtained DNA samples from defendant, his apartment, a condominium that he had access to, his car, and the victim's fingernails. Samples from the kitchen of the apartment tested positive for blood. The DNA samples were sent to a laboratory DNA analysis.

The trial court denied defendant's motion for a Frye¹ hearing to determine the admissibility of the LCN DNA test results. At trial, the State's experts testified that DNA samples from the kitchen was consistent with the victim's DNA. Analysis of a second set of DNA samples showed a mixture of DNA from two people, one of whom was the victim. DNA samples from the victim's home did not test positive for defendant's DNA, but samples taken from the victim's fingernails did. Samples from defendant's apartment and car did not test positive for the victim's DNA. Defense experts opined that the LCN DNA testing and FST were neither reliable nor generally accepted in the relevant scientific community. Defendant was found guilty of the murder.

On appeal, the court remanded the case for a Frye hearing to determine the admissibility of the disputed DNA evidence under the standards adopted in State v. Harvey, 151 N.J. 117 (1997), and retained jurisdiction.

Following a multi-day Frye hearing, at which numerous expert witnesses testified, the trial court determined the State clearly established that the LCN DNA testing technique and FST were generally accepted in the relevant scientific community and ruled the DNA analysis was admissible.

The court rejected the trial courts determinations, concluding that the State did not clearly establish that the LCN DNA testing technique and FST were generally accepted in the relevant scientific community. Therefore, the DNA evidence derived by using that technique and software was inadmissible. Noting that the remaining evidence was not overwhelming and recognizing that DNA evidence is powerful and compelling, the court determined that admission of the disputed DNA evidence raised a reasonable doubt that the jury was led to a verdict it otherwise might not have reached. Because the error was not harmless, the court reversed defendant's conviction and remanded for retrial.

________________________________________________________________
¹ Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).