Opinion Summaries

Harsh P. Parikh and Jayan P. Desai v. Livingston Township; Docket Nos. 013603-2016; 013605-2016, opinion by Nugent, decided on January 25, 2018, released for publication February 26, 2018. For plaintiff - Michael I. Schneck (Schneck Law Group L.L.C.); for defendant - Sharon L. Weiner (Murphy McKeon, P.C.). Taxpayers undertook a residential addition and alterations pursuant to a township building permit obtained February 5, 2015. A certificate of occupancy dated August 7, 2015 issued for the completed work was received by the assessor November 4, 2015. In October 2016, the assessor levied two added assessments on the property, representing value added for fullyear 2016 and for the final four months of 2015. The county tax board affirmed the assessments and taxpayers appealed the judgment to the tax court. Both N.J.S.A. 54:4-63.2 and 63.3 permit the local authority to tax value added to the property by the taxpayer through work completed after the October 1 pre-tax year valuation date established in N.J.S.A. 54:4-23. The tax court reasoned that only the 2015 partial levy constituted a valid omitted added assessment based on the date the alterations were completed. The assessor’s November 2015 discovery of alterations to the property completed before October 1, 2015, failed to satisfy the plain language of N.J.S.A. 54:4-63.2 necessary to sustain the full year 2016 added assessment. The court found the assessor had arrived at an erroneous determination of the property value on October 1, 2015 for tax year 2016, and that a remedy was available to the taxing authority through the normal tax appeal process. Finally, Township’s argument that it is common practice among assessors in the State to impose an added assessment upon discovery of alterations through receipt of the certificate of occupancy, regardless of the date the work is completed, is unavailing.

An alleged mentally ill man died strapped to a "restraint chair" in the Middlesex County Adult Correctional Facility, approximately twenty-four hours after he was arrested for assault and resisting arrest. Decedent's estate filed a multi-count civil suit against a number of public entities and their employees, including three nurses employed by the Correctional Facility. The trial court granted the nurses' unopposed motion to dismiss with prejudice the counts in the complaint alleging professional malpractice based on plaintiffs' failure to file a timely Affidavit of Merit (AOM). Represented by different counsel, plaintiffs argued they were entitled to serve the AOM 107 days after the expiration of the maximum statutory period based on the equitable doctrine of substantial compliance and "extraordinary circumstances." The court agreed and vacated the dismissal with prejudice.

National Auto Dealers Exchange, L.P. v. Director, Division of Taxation, Docket No. 000028-2014. Opinion by Andresini, P.J.T.C., decided February 26, 2018. For plaintiff - Marc A. Simonetti (Eversheds Sutherland (US) LLP, attorneys); for defendant - Michael J. Duffy (Gubrir S. Grewal, Attorney General of New Jersey). Plaintiff moved for summary judgment on grounds that defendant lacked statutory authority to issue an assessment of Corporation Business Tax (“CBT”). Plaintiff is a New Jersey limited liability partnership consisting of two foreign corporate partners. For years 2004-2009 each partner provided the partnership with a signed consent to New Jersey taxation (Form NJ- 1065E) and paid New Jersey Corporation Business Tax on its distributive shares of New Jersey partnership income by filing its own CBT return. In 2011, the limited partner requested a refund of CBT payments for 2004-2009 alleging lack of nexus with New Jersey under the CBT Act. Defendant denied the partner’s refunds, and the partner filed a complaint with the Tax Court. The defendant audited plaintiff and assessed a deficiency on plaintiff under N.J.S.A. 54:10A-15.11, which requires partnerships to withhold and remit CBT on behalf of nonresident corporate limited partners. Plaintiff filed this complaint and moved for summary judgment arguing that under N.J.S.A. 54:10A-5.7, when a partnership obtained a partner’s consent to New Jersey taxation, its obligation under 54:10A-15.11has been satisfied. The court held that the assessments for tax years 2004-2005 were barred by the statute of limitations and declared the assessments for years 2006-2009 void as a matter of law. The court held the defendant lacked statutory authority to issue an assessment of CBT against plaintiff as CBT Act only required the partnership to either collect the partner’s Form NJ-1065E or remit CBT on the partner’s behalf to be fully relieved of any further CBT obligations.

In this mortgage foreclosure action, the trial court declared the foreclosure judgment satisfied and ordered plaintiff to refund an overpayment to defendant. Plaintiff appealed, arguing the trial court abused its discretion in finding equitable redemption by a third-party which was not a borrower or guarantor of the loan, and had no property interest in the mortgaged premises. Plaintiff also argued the trial court abused its discretion by not enforcing the cross-collateralization clause and by not precluding redemption under the doctrine of unclean hands.

Pursuant to the merger doctrine, the panel held plaintiff is precluded from demanding payment of the aggregate loan balance under a cross-collateralization clause beyond the amount reflected in the foreclosure judgment. The merger doctrine also precluded enforcement of restrictions imposed in the note's prepayment clause.

Since plaintiff retained, deposited, and threatened to apply the allegedly unacceptable check to the balances owed on the other cross-collateralized loans in its sole discretion, rather than returning the check to the payor, the panel held plaintiff had accepted the payment, thereby satisfying the loan and foreclosure judgment. In light of this ruling, the panel did not reach the issue of whether the payor could redeem the property.

Finally, the panel held that defendants were not guilty of unclean hands merely because they had defaulted.

In this case of first impression, this court interprets and applies the Overdose Prevention Act (the "OPA" or "the Act"), N.J.S.A. 2C:35-30 to -31; N.J.S.A. 24:6J-1 to -6, a statute enacted in 2013. The OPA is intended to save lives by "encouraging witnesses and victims of drug overdoses to seek medical assistance." N.J.S.A. 24:6J-2.

Among other things, the statute confers immunity upon two categories of qualifying persons from being "arrested, charged, prosecuted, or convicted" for certain enumerated possessory drug offenses. The immunity covers persons: (1) who act in good faith to request medical assistance for individuals perceived to be experiencing a "drug overdose," as defined by N.J.S.A. 24:6J-3; or (2) who experience a drug overdose and have been the subject of such a good faith request for medical assistance by others, or who have sought such assistance themselves. See N.J.S.A. 2C:35-30 (granting immunity for the persons making such requests for assistance); N.J.S.A. 2C:35-31 (granting immunity for the persons who are the subject of such eligible requests).

The panel rejects the State's argument that the immunity conferred by the Act contains an implied exception for persons who are only "intoxicated." Instead, courts applying the statute must address the specified terms of the definition of a "drug overdose" set forth in N.J.S.A. 24:6J-3. That definition requires that the person be in "an acute condition including, but not limited to, physical illness, coma, mania, hysteria, or death resulting from the consumption or use of a controlled dangerous substance [CDS] or another substance with which a [CDS] was combined and that a layperson would reasonably believe to require medical assistance." (emphasis added).

The panel further concludes that, as the words of the statute specify, the protection of the OPA's immunity extends to all phases of the criminal process, including arrest, charge, prosecution, and conviction.

Because the sparse factual record in this case is unclear in several respects and inadequate to resolve the disputed immunity issues, the panel remands this case for further proceedings to develop the facts in greater depth.

In these consolidated foreclosure actions, the trial judge conducted – as required by our earlier decision, Brunswick Bank & Tr. v. Affiliated Bldg. Corp., 440 N.J. Super. 118 (App. Div. 2015) – an evidentiary hearing to determine whether plaintiff, during its serial collection efforts, had recouped more than it was owed. The trial judge concluded that defendants failed to provide "competent" evidence on the fair market value of properties plaintiff obtained at sheriff sales at or about the time plaintiff neared a 100% recoupment of the money due on the combined loans. In remanding again, the court held, among other things, that the judge erred in concluding defendants' evidence was incompetent, that there was admissible evidence suggesting a fair market value in excess of the amount still owed to plaintiff, and that the trial court is authorized, in the absence of the parties' production of expert testimony, to retain its own expert to opine on these relevant subjects to ensure plaintiff does not receive an undue windfall.

Because the critical causative conduct in this case was a failure to enforce the law, Bierals is entitled to absolute immunity. The City’s liability is conditioned on that of Bierals, and thus the City is entitled to absolute immunity as well.

Defendant filed a motion for reconsideration 101 calendar days after the trial court's order denying its motion to enforce an arbitration agreement. Although facially untimely, the motion judge denied the motion on its merit. Defendant appealed. This court affirms for reasons other than those expressed by the trial court. This court holds that a decision to deny a motion to enforce an arbitration agreement is a final order subject to the 20-day time restraints for filing a motion for reconsideration under Rule 4:49-2. Neither the parties nor the trial court may enlarge the time specified by Rule 4:49-2. See R. 1:3-4(c). The trial court's order denying defendant's motion to compel arbitration was appealable as of right. R. 2:2-3(a)(3). Defendant's only legally cognizable recourse after the time to file a motion for reconsideration expired was to file a timely direct appeal to this court. GMAC v. Pitella, 205 N.J. 572, 586-87 (2011).

The Appellate Division ruled that the State Police Lab's draft DNA report was not "within the possession, custody or control of the prosecutor" until the lab sent it to the county prosecutor, and in any event was not discoverable until the report was reviewed and approved by the lab. R. 3:13-3(b)(1)(C). Regardless of the speedy trial provisions, the court abused its discretion by excluding the DNA evidence rather than granting a continuance of trial under Rule 3:13-3(b)(1)(I) and -3(f), given the evidence's importance and the absence of surprise, prejudice, or a design to mislead.

Under the speedy trial rule and statute, a case may be "complex" if it has "complicated evidence," but time is excludable only if the complexity makes it unreasonable to expect adequate preparation for trial in the speedy trial period. R. 3:5-4(i)(7); N.J.S.A. 2A:162-22(b)(1)(g). The provision addressing failures to produce discovery is a limit on excludable time. N.J.S.A. 2A:162-22(b)(2). The court properly excluded time sua sponte under N.J.S.A. 2A:162-22(b)(1)(c), and retained jurisdiction to do so after the State sought and obtained leave to appeal. That provision excludes the time while an emergent relief request, or interlocutory appeal, is pending in this court. Time while the trial is stayed is excludable under N.J.S.A. 2A:162-22(b)(1)(l).

K.K., an eighty-eight-year old legal permanent resident who entered the country in 1991, left in 2007 and returned in 2014, is entitled to Medicaid payments without waiting five years because he entered the country before August 22, 1996. The agency's ruling to the contrary is reversed based on a de novo interpretation of federal statutory requirements.

In this appeal from a final agency decision by the Commissioner of Education, the court addresses the rights that part-time tenured teachers in the non-public school setting enjoy pursuant to the New Jersey Tenure Act, N.J.S.A. 18A:28-1 to -18. The court held that the omission of a contractual guaranteed number of minimum hours per year did not deprive them from the protection against a reduction in compensation or of their seniority rights. Because the record was incomplete, the court remanded with instructions to determine whether the reduction in hours constituted a reduction in their compensation and a reduction in force under the Tenure Act.

Following a sixty-six day bench trial, and before the judge ruled on the admissibility of the experts' testimony and rendered a verdict, the Department of Environmental Protection (DEP) and Exxon Mobil Corporation settled DEP's lawsuit seeking natural resource damages (NRD) caused by pollution at Exxon's refinery in Linden and facility in Bayonne. DEP provided public notice of the proposed consent order pursuant to N.J.S.A. 58:10-23.11e2, and received 16,000 comments, mostly objections, including those of appellant State Senator Raymond Lesniak and appellants, a number of public interest environmental groups.

Before DEP responded to the comments, both appellants sought to intervene in the trial court; Judge Michael J. Hogan denied their motions without prejudice, and he permitted them to file opposition as amici and argue against the proposed settlement at a subsequent hearing. After Judge Hogan approved the settlement, appellants again sought to intervene for purposes of appeal. Judge Hogan denied their motions.

The court holds that a party must have standing before it can intervene at trial under our Court Rules. Because appellants cannot bring suit for NRD under the Spill Compensation and Control Act (the Spill Act), N.J.S.A. 58:10-23.11 to 23.24, the Environmental Rights Act, N.J.S.A. 2A:35A-1 to -14, or the common law, the court affirmed Judge Hogan's denial of their motions for intervention at trial.

However, because the Appellate Division alone can decide whether an appellant has standing to appeal, and because the environmental groups have standing to assert the public's interest in challenging DEP's decision to settle the lawsuit, the court considered the merits of Judge Hogan's decision to approve the settlement.

Applying the rationale of federal decisions interpreting the Spill Act's federal counterpart, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-675, the court concluded the appropriate standard of review is whether the judge mistakenly exercised his discretion in concluding the settlement was fair, reasonable, consistent with the Spill Act's goals, and in the public interest. The court affirmed Judge Hogan's approval of the settlement.

The court construed N.J.R.E. 609(b), which addresses the admissibility, for impeachment purposes, of remote convictions, i.e., those over ten years old. The ten-year period is calculated from the date of the conviction or release from confinement for it, whichever is later. The court held that civil commitment, pursuant to the Sexually Violent Predator Act, is not "confinement for" a criminal conviction. Therefore, a period of civil commitment may not be excluded in calculating whether a conviction is more than ten years old.

Defendant, a resident of the Special Treatment Unit (STU), was on trial for assaulting a corrections officer at the STU. Defendant had been convicted of a sexual assault in 1990, completed his sentence in 2000, and was then civilly committed to the STU. The trial court erred in determining that, due to defendant's ongoing civil commitment, his 1990 sexual assault conviction was not remote under N.J.R.E. 609(b).

Money recovered from a qui tam action brought pursuant to a provision of the federal False Claims Act, 31 U.S.C. § 3730, is a "prize or award" under N.J.S.A. 54A:5-1(l) that is subject to taxation under the New Jersey Gross Income Tax Act, N.J.S.A. 54A:1-1 to 10-12; and the taxpayer may not deduct the fees he paid to his attorneys to prosecute the action, or the amounts he paid to the plaintiffs in related qui tam actions pursuant to their joint prosecution and sharing agreement.

The parties in this matrimonial action agreed to submit issues incident to their divorce to binding economic arbitration pursuant to the New Jersey Arbitration Act (Act), N.J.S.A. 2A:23B-1 to -32. A handwritten provision inserted into the arbitration agreement read: "The parties reserve their rights to appeal the arbitrator's award to the appellate division as if the matter was determined by the trial court."

Appellant does not contend that he has satisfied any of the grounds enumerated under Section 23 of the Act to vacate the award. He argues instead, that the provision is illegal and therefore, it renders the arbitration award void in its entirety.

The court confirms that the parties cannot create subject matter jurisdiction by agreement and bypass the trial court to seek immediate appellate review.

The court concludes that striking the illegal clause does not defeat the primary purpose of the contract, which was to resolve the parties' matrimonial issues through binding arbitration pursuant to the Act. The remainder of the arbitration agreement is valid and enforceable and we confirm the arbitration award.

We hold that New Jersey courts do not have jurisdiction to hear civil claims against foreign officials when the United States, through the State Department, has issued a suggestion of immunity (SOI) determining that those officials are entitled to conduct-based immunity. Therefore, we affirm a December 9, 2016 order dismissing plaintiff's civil complaint against six Israeli rabbinical judges and an official of the Rabbinical Religious Courts Administration of Israel after the State Department determined that the judges and official were acting within the scope of their duties for a foreign sovereign nation.

The affidavit supporting a search warrant disclosed in discovery need not be disclosed as a matter of course, and no particular circumstances necessitated disclosure of that affidavit here. To the extent that the trial court’s order of release served as a “sanction” for the State’s failure to meet what the court viewed to be the State’s discovery requirements, that release order was improper.

The court, after determining the New Jersey Council of Educational Services Commission – which represents the interests of eight educational services commissions – had standing to challenge the New Jersey State Board of Education's approval of the Middlesex Regional Educational Services Commission's request to change its name to the Educational Services Commission of New Jersey, held the State Board has the statutory authority to approve an educational services commission's name-change application even absent a concomitant application to change the scope of its services, and the State Board's action was not arbitrary and capricious.

Defendant was sentenced to consecutive prison terms of twenty, seven, and five years, for first-degree aggravated manslaughter and two counts of second-degree aggravated assault, resulting from his having caused, while intoxicated, an auto accident that killed a nine-year old and seriously injured two others.

In State v. Carey, 168 N.J. 413, 429 (2001), a divided Court determined that in multiple-victim vehicular-homicide matters, sentencing judges should "ordinarily" impose "at least two consecutive terms." The Court, however, also emphasized that it had not "adopt[ed] a per se rule" and the decision to impose consecutive terms remained in the discretion of sentencing judges. Id. at 419. In considering Carey's influence here, the court remanded for resentencing because, among other things, the sentencing judge appeared to have viewed Carey as imposing a presumption in favor of consecutive terms and because the judge did not fairly consider the real-time consequence of the aggregate thirty-two year sentence, all subject to an eighty-five percent period of parole ineligibility, imposed on an offender who was fifty-eight at the time of the incident and sixty-two at the time of sentencing.

N.J.A.C. 12:17-9.3(b) does not generally impose a notice-and-inquiry requirement on every claimant who has departed her work because that work aggravated a medical condition. Nonetheless, Ardan failed to meet the burden imposed by the regulation. The Appellate Division panel properly decided this appeal based on the version of the statute that was in effect when Ardan applied for unemployment benefits in 2012.