Opinion Summaries

After settling her medical malpractice suit with plaintiff's estate, defendant-doctor Bowers was prepared to try her third-party contribution claim against third-party defendant Comiskey, who also treated plaintiff but was never named as a direct defendant. Comiskey moved to dismiss, arguing the Joint Tortfeasor Contribution Law, (the JTCL), N.J.S.A. 2A:53A-1 to -5, predicated a contribution-only claim upon plaintiff's recovery of a "money judgment" against Bowers. The settlement and release executed by the parties did not satisfy the JTCL. The motion judge denied Comiskey's motion, finding it was untimely, and because the settlement was placed on the public website of the Division of Consumer Affairs, as required by regulation, the settlement was the equivalent of a money judgment.

On leave granted, the court reversed. The court reviewed a line of cases from the Supreme Court and the Appellate Division that have consistently construed the right to contribution under the JTCL as requiring entry of a money judgment against the contribution claimant.

The court also raised concern about continued application of the Court's holding in Young v. Steinberg, 53 N.J. 252 (1969). In Young, the Court held that "[a] suit for contribution based on a settlement which has been elevated to the status of a judgment by formal court proceeding, and which discharges the injured party's claim against a non-settling joint tortfeasor, comports with the intent of our statutory scheme." Id. at 255 (emphasis added). At trial, the contribution claimant must still "establish a common liability . . . and the quantum of the damages ensuing from the joint offense." Ibid.

The court noted Young was decided prior to enactment of the Comparative Negligence Act (the CNA), N.J.S.A. 2A:15-5.1 to -5.8. As a result, pro rata apportionment of damages under the JTCL was supplanted by apportionment of liability and damages based on comparative fault.

These six back-to-back appeals arising from Law Division orders in two vicinages have been consolidated for the issuance of a single opinion. They require the court to consider an issue of first impression –– whether in the context of Rule 4:6-2(e) motions to dismiss with prejudice, insurance policies issued by defendants did not cover business losses incurred by plaintiffs that were forced to close or limit their operations as a result of Executive Orders issued by Governor Philip Murphy to curb the COVID-19 global health crisis.

We affirm because we conclude the motion judges were correct in granting Rule 4:6-2(e) dismissals of plaintiffs' complaints with prejudice for failure to state a claim on the basis that plaintiffs' business losses were not related to any "direct physical loss of or damage to" as required by the terms of their insurance policies. We conclude plaintiffs' business losses were also not covered under their insurance policies' civil authority clauses, which provided coverage for losses sustained from governmental actions forcing closure or limiting business operations under certain circumstances. We further conclude defendants' denial of coverage was not barred by regulatory estoppel. In the alternative, we conclude that even if plaintiffs' business losses otherwise satisfied the requirements of the relevant clauses, coverage was barred by their insurance policies' virus exclusions and endorsements because the Executive Orders were a direct result of COVID-19.

In January 2007, defendant sold a business to a relative of the plaintiffs. All but $12,500 of the $196,5000 purchase price was financed by defendant. The loan was secured by a mortgage on plaintiffs' residence and the personal guaranty of plaintiff Vadim Chepovetsky. Shortly thereafter, the buyer defaulted. The maturity date of the mortgage was February 22, 2012. Litigation in 2008 did not result in a judgment. In 2011, plaintiffs filed a joint Chapter Seven bankruptcy. The debt schedules list defendant as an unsecured creditor. The bankruptcy trustee abandoned his interest in the plaintiffs' residence. A discharge was granted to plaintiffs and a final decree was entered closing the case a no-asset bankruptcy. Defendant received timely notice of the bankruptcy filing and the discharge.

Thereafter, plaintiffs filed this action to quiet title. Defendant filed a counterclaim, seeking to enter judgment for personal liability against plaintiffs on the guaranty and to fix the amount due on the mortgage. Plaintiffs did not raise the affirmative defense of discharge in bankruptcy. Plaintiffs' complaint was dismissed for failing to provide discovery. The court conducted a bench trial on the counterclaim. Plaintiffs did not attend the trial and their attorney did not raise the defense of discharge in bankruptcy. The court entered judgment for $410,800 against Chepovetsky but not Svetlana Nashtatik.

Thereafter, plaintiffs moved to vacate the judgment, alleging it was void due to their bankruptcy discharge, and to vacate the dismissal of their complaint, because they were not required to respond to defendant's discovery demands related to a debt discharged in bankruptcy. They also argued that foreclosure was barred by the six-year statute of limitations imposed by N.J.S.A. 2A:50-56.1. Defendant opposed the motion, relying on equitable principles, including unclean hands, and asserted that plaintiffs did not prove that Chepovetsky's liability on the guaranty was discharged.

The trial court vacated the judgment and the order dismissing the quiet title action. The court found the judgment was void ab initio because Chepovetsky's "personal debt" to defendant was discharged in bankruptcy. The court stated it was unaware of the discharge in bankruptcy when it entered judgment against Chepovetsky. The court found the order dismissing the complaint was "improvidently entered" and reinstated the complaint, noting that pursuant to 11 U.S.C. § 524, plaintiffs were "not obligated to do anything" and were "entitled to disregard" discovery that was part of an attempt to collect a discharged debt. The court also found that the mortgage matured on February 22, 2012, and defendant failed to institute a timely foreclosure action within six years. Therefore, an action to quiet title was appropriate.

We granted defendant leave to appeal. Applying the Supremacy Clause, the court held that the nature, extent, and enforceability of a discharge in bankruptcy is controlled by the Bankruptcy Code and interpretative federal case law. Pursuant to 11 U.S.C. § 524, debtors are not required to defend a postdischarge collection action. Consequently, they were not required to provide discovery, and the failure to plead discharge in bankruptcy as an affirmative defense did not waive that defense or estop plaintiffs from asserting it. Enforcing the waiver of the affirmative defense of discharge in bankruptcy under Rule 4:5-4 would violate the Supremacy Clause and be inconsistent with substantial justice. The court rejected defendant's reliance on the Rooker-Feldman doctrine.

The court held that Chepovetsky's personal liability on the guaranty was discharged in bankruptcy and that Nashtatik was not a guarantor of the loan. Accordingly, the judgment imposing personal liability on Chepovetsky was void ab initio and properly vacated.

As to the mortgage lien, the court held that defendant was entitled to a judgment fixing the amount due on the mortgage, explaining that a discharge in bankruptcy only discharges the personal liability of the debtors, and the mortgage lien remains enforceable against their real property if the foreclosure action is timely filed. The court expressed no opinion on whether a future action to foreclose the mortgage would be time-barred by the applicable statute of limitations. The ruling that foreclosure was time-barred was vacated, with that issue to be reconsidered on remand.

The trial court dismissed plaintiffs' personal injury complaint against Cumberland County because plaintiffs served their notice of claim on the county clerk rather than the clerk of the board of county commissioners. Recognizing that N.J.S.A. 59:8-7 and -10 do not specifically identify the county office or officer to be served with a notice of claim, the court held as a matter of first impression that service on the county clerk suffices.

The court affirmed the provisions of the trial court order designating registrant B.B. as a Tier II offender under the Registration and Community Notification Laws, N.J.S.A. 2C:7-1 to -23, commonly known as Megan's Law, and ordering notification of schools and community organizations pursuant to N.J.S.A. 2C:7-8(c)(2). However, the court: (1) concluded it was an abuse of the trial court's discretion to give a score of nine on factor six of the Risk Assessment Scale, "duration of offensive behavior," because the State did not prove by clear and convincing evidence that B.B.'s sexual offenses took place over two years and held that a score of three, applicable to sexual offenses that took place over one or two years was appropriate; and (2) vacated a provision of the trial court order excluding B.B.'s personal identifiers from the Sex Offender Internet Registry, N.J.S.A. 2C:7-12 to -18. The court found that the evidence on which the trial court relied for that determination was not expert testimony or other evidence specific to the unique aspects of B.B.'s offenses or character relevant to his risk of re-offense. The court noted, but did not decide, the question of whether Article IV, Section 7, Paragraph 12 of the State Constitution and its implementing statute, N.J.S.A. 2C:7-13(c), preclude a court from excluding the personal identifiers of a Tier II offender subject to community notification pursuant to N.J.S.A. 2C:7-8(c)(2) from the State Offender Internet Registry.

The court considered a matter of first impression relating to the application of the New Jersey Law Against Discrimination (LAD). Specifically, the court considered whether the LAD applies to claims arising from a sexual predator's criminal assaults against a young schoolgirl where those crimes were committed on a school bus. Under the circumstances of this case, the court concluded the LAD did not apply, especially where, as here, there was no evidence that the predator's compulsive and repetitive behavior was the result of any proven intention to discriminate specifically against young women. The court found the LAD was simply not intended to provide a civil remedy for child sex abuse committed by compulsive pedophiles. Even if it was, it concluded a victim must demonstrate the discriminatory conduct would not have occurred 'but for' the student's protected characteristic. The court concluded the plaintiffs did not meet that burden. The court's opinion construing the LAD did not address or preclude relief under other laws that were not invoked by plaintiffs on appeal.

After reviewing the noble principles that infuse the public policy underpinning this cause of action, the Court declines to consider property, in whatever form, to be equally entitled to the unique value and protection bestowed on a human life. The Court nevertheless expands the rescue doctrine to include acts that appear to be intended to protect property but are in fact reasonable measures ultimately intended to protect a human life.

Plaintiff's complaint about a June 21, 2018 automobile accident was filed on June 29, 2020. Defendants moved to dismiss the complaint for failure to commence the action timely, citing the two-year statute of limitations set forth in N.J.S.A. 2A:14-2(a). In opposition, plaintiff contended the complaint was timely filed, asserting the Supreme Court had tolled the statute of limitations in its June 11, 2020 Fourth Omnibus Order related to the COVID-19 pandemic and effectively had added fifty-five days to the statute-of-limitations period. The trial court granted defendants' motion, finding the Supreme Court in its Omnibus Orders related to the COVID-19 pandemic had not added time to the statute of limitations but had deemed the period of time from March 16, 2020, to May 10, 2020, a legal holiday for purposes of computing time.

The court agreed with the trial court, finding the Supreme Court had issued an order on March 17, 2020, in which the Court cited its constitutional rule-making authority under Article VI, section 2, paragraph 3 of the New Jersey Constitution to deem the relevant time period a legal holiday. Noting the express language in the Fourth Omnibus Order "affirm[ing] the provisions of [its] prior orders" and that the Supreme Court had not cited any new or different authority for its directive regarding the computation of time, the court concluded the Supreme Court in the Fourth Omnibus Order was exercising its constitutional rule-making authority to deem March 16, 2020, through May 10, 2020, a legal holiday and was not adding time to the statute of limitations.

In this appeal, the court affirmed the dismissal of plaintiffs' complaint challenging the Medical Aid in Dying for the Terminally Ill Act, N.J.S.A. 26:16-1 to -20, which allows qualified terminally ill patients to request and obtain from his or her physician a prescription for medication that the patient can choose to self-administer to end his or her life in a "humane and dignified manner." The court held that plaintiffs, a terminally ill patient, a doctor, and a pharmacist, lacked standing to challenge the Act because the legislation provides that participation under its provisions is voluntary for patients and health care professionals. It also concluded that plaintiffs' constitutional challenges to the legislation, premised on the New Jersey Constitution's single object rule and right to enjoy and defend life and the United States Constitution's Free Exercise Clause, lacked merit.

In these appeals, trial courts in two vicinages reached opposite conclusions regarding whether, pursuant to the enactment of the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), N.J.S.A. 24:6I-31 to -56, N.J.S.A. 54:47F-1, N.J.S.A. 40:48I-1, N.J.S.A. 18A:61F-1, N.J.S.A. 2C:35-23.1, and N.J.S.A. 2C:52-6.1,1 a defendant may be admitted into pretrial intervention (PTI) where they have a prior conditional discharge for marijuana charges. One court concluded the defendant could not be admitted into PTI, finding the Legislature did not end the PTI eligibility bar where a defendant received a conditional discharge. The other court held that while the Legislature did not amend the PTI statute, the legislative intent of CREAMMA included removing the statutory bar to PTI eligibility where a defendant obtained a conditional discharge.

After reviewing CREAMMA, the PTI statute, the expungement statute, and considering extrinsic evidence, including the legislative histories of each enactment, the court found no evidence the Legislature intended to repeal, amend, or supersede the bar to PTI eligibility following the completion of a supervisory program and granting of a condition discharge. If, in fact, the Legislature intended such a modification, the remedy should be left to it rather than the court, which declines to insert language that is unsupported by the extant legislative evidence and intent. As a result, the court reversed the trial court decisions granting three defendants' admission into PTI and upheld the trial court's ruling barring the fourth defendant PTI admission.

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1 L. 2021, c. 16.

A residential real estate sale by absolute auction is distinct from a traditional real estate transaction in which a buyer and seller negotiate the contract price and other terms and memorialize their agreement in a contract. In an absolute auction or an auction without reserve, as is the issue here, the owner unconditionally offers the property for sale and the highest bid creates a final and enforceable contract at the auction’s conclusion, subject to applicable contract defenses. Imposing the three-day attorney review prescribed in State Bar Ass’n on residential real estate sales conducted by absolute auction would fundamentally interfere with the method by which buyers and sellers choose to conduct such sales.

Based on the differences between the federal and state proceedings, the trial court did not abuse its discretion in denying defendants’ motion to dismiss the indictment. Like the Appellate Division, the Court finds that Special Agent Kopp’s interpretations were expert rather than lay opinions, but that the error in admitting them as lay opinion testimony was harmless. The Court bases its finding of harmless error, however, upon the overwhelming evidence of defendants’ guilt presented at trial, rather than on the hypothetical qualifications of the agent.

In the four decades since Wilson, the Court has consistently disbarred attorneys who knowingly misappropriated client funds regardless of their motives or other mitigating factors. The rule has remained inviolate because of the critical aims it seeks to serve: to protect the public and maintain confidence in the legal profession and the Judiciary. 81 N.J. at 461. If a lawyer knowingly misappropriates client funds, both the attorney and the public should know that the person will be disbarred.

The court affirms defendant's jury trial conviction for second-degree robbery of a bank. The court first addresses defendant's contention that the trial judge erred by permitting the jury to hear testimony that the investigating police officer had been contacted by and "consulted" with another police department immediately before filing criminal charges. Defendant contends that such testimony violated the Confrontation Clause. After reviewing New Jersey's Confrontation Clause case law, the court concludes that the police officer's brief answer to the prosecutor's leading question concerning the consultation with the other police department violated defendant's Sixth Amendment rights because it created an inescapable inference that the other department possessed and shared incriminating evidence about the current offense that was not presented to the jury. The court nonetheless concludes that the constitutional error was harmless beyond a reasonable doubt.

The court next addresses defendant's contention that the trial judge abused his discretion by allowing a police witness to narrate surveillance video as it was being played to the jury. The court surveys the law in New Jersey explaining when a police witness may offer a lay opinion. The court also surveys cases in other jurisdictions that specifically address the admissibility of video narration testimony. The court declines to adopt a rule that would categorically prohibit such testimony, holding instead that a trial court has discretion to permit a witness to offer descriptive comments while a video is being played if the court finds that those specific comments would be helpful to the jury. To assist trial judges in making that determination, the court compiles a list of six factors to consider. In this instance, the court declines to second-guess the trial judge's rulings that sustained some objections to the video narration testimony and overruled others.

The court notes that the use of surveillance video evidence at trial is becoming more common because of the proliferation of government, commercial, and residential surveillance cameras. To improve the process by which the admissibility of police narration testimony is determined, the court recommends a new practice and procedure whereby the trial judge would conduct an in limine hearing when the prosecutor intends to present narration testimony in conjunction with playing a video to the jury. At that hearing, the court should rule upon the specific narration comments that will be permitted and those that will be foreclosed, providing clear instructions for the witness to follow. That in limine procedure would obviate the need for a series of spontaneous objections in the presence of the jury.

The court also notes that there presently is no model jury instruction pertaining to lay opinion testimony. The court recommends that the Model Jury Charge Committee consider whether it would be appropriate to draft a model instruction specifically tailored to address video narration testimony.

The court next considers defendant's contention, raised for the first time on appeal, that the trial court erred by allowing the bank teller to make an in-court identification after having selected the photograph of another person from a photo array. After reviewing the foundational principles that undergird New Jersey's eyewitness identification jurisprudence, the court rejects defendant's request to categorically ban "first-time" in-court identifications. The court declines to impose new bright-line preconditions on when an eyewitness may identify the perpetrator at trial. Rather, the court retains the rule that the decision to allow an in-court identification is made on a case-by-case basis, mindful that suppression of identification testimony is rarely warranted and that the reliability of an identification and the weight to give to it is generally for the jury to decide with the benefit of cross-examination and appropriate jury instructions.

The court also addresses defendant's contention that the trial court should have revised the model jury charge sua sponte to explain the inherent suggestiveness of the in-court identification procedure. The court concludes that the trial judge did not commit plain error by relying on the current model jury charge. The court acknowledges, however, that the time has come to reexamine that instruction. After reviewing the case law and scientific literature, the court accepts that the inherent suggestiveness of in-court identifications is comparable to the suggestiveness of one-on-one show-up identifications. And yet, the court notes, the model jury instructions pertaining to in-court identifications are less detailed and precise than the model instruction that explains the risk of misidentification in a show-up procedure. The court recommends that the Model Jury Charge Committee consider revising the model instruction pertaining to in-court identifications, for example, by incorporating language currently used to explain the suggestiveness of one-on-one show-up identifications.

A tenured teacher asked the board of education about switching from a full-time role to a part-time position with benefits. The board approved her transfer but failed to inform her of the impact it would have on her tenured status. When the teacher re-applied for a full-time role, she did not get the job. The teacher appealed and an administrative law judge found for the board. However, the Commissioner of Education reversed the initial decision, finding instead that the teacher did not knowingly waive her right to a full-time position because the board had a duty to inform the teacher of the consequences of going part-time under Bridgewater-Raritan Educ. Ass'n v. Bd. of Educ. of Bridgewater-Raritan Sch. Dist., 221 N.J. 349 (2015).

The court affirmed the Commissioner's decision and interpretation of Bridgewater-Raritan, which established a school's duty, under N.J.S.A. 18A:16-1.1, to provide notice to replacement teachers concerning the limitations on service time towards tenure. The court held that Bridgewater-Raritan compels school boards to notify in advance a full-time tenured teacher who voluntarily takes a part-time teaching position that she is at risk of not getting her full-time job back.

A former public school bus driver appealed from a PERS final agency decision declaring her ineligible to file an accidental disability retirement application when separation from service was based upon an irrevocable resignation, not related to a disability, in accordance with N.J.A.C. 17:1-6.4.

On appeal, the court was required to determine whether a school employee, who irrevocably resigned while an employment grievance was pending, could file an application for ordinary or accidental disability retirement benefits, when the charges underlying the grievance did not relate to a disability. For the reasons stated in the court's opinion, it concluded that , in the first instance, a public school employee's irrevocable resignation from employment rendered the school employee ineligible for ordinary or accidental retirement benefits because the school employee's separation from service was based upon a resolution of the pending grievance, and not an alleged disability.

N.J.S.A. 34:15-28.2(a) permits a workers' compensation judge to enforce a court order, statute or regulation by imposing "an additional assessment not to exceed 25% of moneys due for unreasonable payment delay." In this case, the parties settled petitioner's total disability claim, and, the judge imposed the maximum assessment when the county was sixteen days late in making payment required under the order.

The court reversed, concluding the judge erred as a matter of law because she considered litigation delays occurring prior to the settlement and entry of the order for payment in fashioning the award. The court also concluded the judge mistakenly exercised her discretion regarding the amount of the award, because she imposed the maximum additional assessment for a relatively short delay.

The court vacates an order of the Tax Court awarding Green Township, pursuant to the frivolous litigation statute, N.J.S.A. 2A:15-59.1, "$45,589.35 in counsel fees and costs for its defense of [defendant Penny] Holenstein"1 in her official capacity as Municipal Tax Assessor. Wolosky v. Fredon Twp., 31 N.J. Tax 373, 405 (Tax 2019). Because the motion for sanctions was filed 679 days after the entry of a final judgment, and after this court affirmed the dismissal of plaintiff's 2016 complaint challenging a property tax assessment, Wolosky v. Fredon Twp., No. A 1980-16 (App. Div. July 24, 2018), we conclude the Tax Court mistakenly exercised its discretion when it reopened the case and considered the motions as timely filed. We therefore vacate the award of sanctions in favor of Green Township.

Plaintiff also appeals from an order denying his motion for counsel fees against defendant Fredon Township. Because the record does not support a finding that Fredon Township acted frivolously, we affirm the denial of plaintiff's motion for sanctions.

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1 We refer to Penny Holenstein individually as Holenstein, and refer to Michael and Penny Holenstein, collectively, as the Holensteins.

The plaintiffs whose claims are implicated in these interlocutory cross-appeals were members of defendant Rutgers-Newark's 2014-15 women's basketball team. Four plaintiffs describe themselves as African-American and gay, one as African-American and bisexual, and the sixth as Hispanic and heterosexual. They claim they were retaliated against and subjected to a hostile environment in violation of the Law Against Discrimination by defendants because, among other things, their interim coach, defendant William Zasowski, referred to them as "dykes," and "nappy-headed sisters," and asked the team captain for the names of the team members who were gay and, when they complained and sought a school investigation, defendants retaliated. The trial judge granted in part and denied in part defendants' summary judgment motion.

The court concluded that the judge did not err in denying summary judgment on plaintiffs' hostile environment claims and did not err in denying summary judgment on the retaliation claims of two plaintiffs; the court held, however, that the judge erred in granting summary judgment on the retaliation claims of the other four plaintiffs. The court held that both the hostile environment and retaliation claims should be considered, not individually as argued by defendants, but in light of the fact that plaintiffs were members of small, tightly-knit group and that each plaintiff could rely on the experiences of the others even if they did not directly experience or witness defendants' alleged discriminatory comments and epithets, thereby distinguishing Godfrey v. Princeton Theological Seminary, 196 N.J. 178 (2008) in this setting.

A plain reading of N.J.S.A. 2C:1-6(c) reveals that the Legislature intended the statute of limitations to begin to run once the State was in possession of both the physical evidence from the crime and the suspect’s DNA. To hold otherwise would contradict the language of the statute which directs the statute of limitations to begin when the State is in possession of both items needed to generate a match. To find that the statute of limitations begins when a match is confirmed would render the second half of the provision superfluous. Here, the statute of limitations began to run in 2010, when the FBI’s updated scientific guidance rendered the Lab capable of generating a match based on the DNA samples in its possession.