Opinion Summaries

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.

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.

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.

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).

New Jersey does not have territorial jurisdiction to prosecute Ferguson, Potts, or Byrd for the drug-induced death of Cabral in New York.

Appellant was serving a life sentence imposed in 1979 for murder, and a consecutive four-year term of incarceration imposed in 2003, for a 2001 drug offense committed during his incarceration. When appellant became parole eligible, the Parole Board aggregated his sentences pursuant to N.J.S.A. 30:4-123.51(h), denied appellant parole, and imposed a 240-month future eligibility term (FET).

The Legislature amended N.J.S.A. 30:4-123.53, promulgating a new standard for parole eligibility for offenses committed after August 18, 1997. Prior to the amendment, the Board could deny parole release if it appeared from a preponderance of the evidence that there is a substantial likelihood the inmate will commit a crime under the laws of this State if released on parole at such time. Following the amendment, the parole eligibility standard changed and now states the Board may deny parole where it appears by a preponderance of the evidence the inmate has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation the inmate will violate conditions of parole if released on parole at that time

The question on appeal is what standard for parole eligibility should apply where a parole eligible inmate is serving sentences for offenses committed before and after the effective date of the statute promulgating the new standard. The court holds the new standard does not apply to parole determinations for inmates eligible for parole who are serving sentences entered prior to August 18, 1997. The Board must determine parole eligibility for such inmates by considering the pre-amendment standard.

The court remanded the matter to the Board to reconsider its decision applying the proper standard. The court also directed the Board to correlate its findings with the length of the FET imposed, considering the sentence for the 2001 offense, which drew the lengthy FET, was just four years.

In this tax foreclosure matter, defendant, U.S. Bank-Cust/Sass Muni VI DTR (U.S. Bank), a large tax lien investment fund, appeals from final judgment and an order denying its motion to vacate final judgment. U.S. Bank had previously obtained ownership of real property by foreclosing on a tax sale certificate, and then failed to pay property taxes. The Chancery Division granted the opposed motion for final judgment without affording the requested oral argument or providing a cogent reason to deny argument. U.S. Bank thus was not told when final judgment would be entered, which would also end its redemption period. Because oral argument was not provided, the court reverses.

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in the panel’s opinion.

Although the Legislature may decide that N.J.S.A. 2C:24-4(a)(1) should not apply in juvenile proceedings based on conduct such as that at issue here, nothing in the current text of that statute precludes the adjudication in this case. The Court declines to rewrite the statute’s plain language in this appeal. However, the Family Part court’s adjudication must be reversed because the court’s disavowal, at the disposition hearing, of critical aspects of its previously-stated factual findings undermined its determination as to both offenses. In this extraordinary setting, it is unclear whether the State met its burden to prove beyond a reasonable doubt that D.M. violated N.J.S.A. 2C:24-4(a)(1). Accordingly, the Court affirms on other grounds the panel’s judgment.