Opinion Summaries

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This case arises out of the development of a solar energy power plant on land in Tinton Falls leased by private parties from the United States Department of the Navy at Naval Weapons Station Earle (NWS Earle).

Under Article I, Sec. 8, par. 17 of the United States Constitution, the land on which NWS Earle is located became a federal enclave in 1947 when the Governor of New Jersey ceded jurisdiction to the United States. As a result, any activities on NWS Earle, located on federal land, are free from regulation by any state or locality.

The majority of the electricians working on the project were members of plaintiff International Brotherhood of Electrical Workers Local 400 (IBEW). IBEW contended Tinton Falls was responsible for the issuance of permits and conducting inspections. The municipality and the New Jersey Department of Community Affairs (DCA) informed IBEW that state laws did not apply to federal territory. The federal government had the exclusive right to regulate its properties.

IBEW instituted suit against Tinton Falls and the DCA. IBEW did not sue the federal government. The trial court granted defendants' motions to dismiss because the federal government was a necessary party to the action and the state court lacked jurisdiction over the federal enclave.

The court affirmed. In addition to being the lessor of the property, the Navy was involved in every aspect of the construction project. The action could not be adjudicated without the joinder of the federal government required under Rule 4:28-1.

The court also found that any amendment to the complaint to join the federal government would be futile because the federal district courts have exclusive jurisdiction over the federal government and the Navy as a military branch. Therefore, the United States cannot be joined as a party in the state court suit. Because the trial court lacked jurisdiction over the federal government, the judge could not address or interpret the applicable contract. As there were no state claims left to adjudicate in the trial court , the complaint was properly dismissed under Rule 4:6-2 (a), (e), and (f).

In this interlocutory appeal, the court held that although the Legislature established a bill of rights for those living in assisted living residences, N.J.S.A. 26:2H-128(b), it did not recognize – as it had with residential health care facilities, rooming and boarding houses, dementia care homes, or nursing homes – their right to pursue a private cause of action for a breach of the bill of rights. The court also determined that the common law should not adopt such a cause of action.

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

The limiting principles established in the Court’s precedent warrant the adoption of the ongoing storm rule. Commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm, but unusual circumstances may give rise to a duty before then. There are two exceptions that could impose a duty: if the owner’s conduct increases the risk, or the danger is pre-existing.

Rule 1:21-1B governs the practice of law as an LLC. Among other things, it mandates that attorneys who do so must procure professional liability insurance that provides coverage to the LLC for damages "arising out of the performance of professional services by attorneys employed by the [LLC] in their capacities as attorneys." R. 1:21-1B(a)(4). Plaintiff, an attorney who conducted her practice as an LLC, purchased a professional liability insurance policy from defendant. Plaintiff's paralegal embezzled nearly $800,000 of clients' closing funds from the firm's trust account. Plaintiff made a claim for defense and indemnification under the policy, but defendant declined coverage, relying on the policy's definition of covered damages. That definition explicitly excluded damages for "the return or restitution of . . . misappropriated client funds . . . ."

Plaintiff sought declaratory judgment seeking reformation of the policy, arguing that the policy did not comply with the Rule, which had the force of statutory law, and which was intended to protect the public from uninsured risks. Alternatively, plaintiff argued the policy was ambiguous and failed to meet her reasonable expectations. The court rejected these arguments and affirmed the Law Division's grant of summary judgment to defendant.

Tax Court: Michael J. Morley, III, Executor of Estate of Linda A. Cerritelli v. Director, Division of Taxation, Docket No. 007443-2020; opinion by Sundar, P.J.T.C., decided June 7, 2021. For plaintiff - Francis P. Maneri, Kristen L. Behrens, and Sarah Gremminger (Dilworth Paxson, LLP, attorney); for defendant - Heather Lynn Anderson (Gurbir S. Grewal, Attorney General of New Jersey, attorney).

Held: Amounts to be included in the decedent’s gross estate for purposes of New Jersey’s Estate Tax are the sums actually recovered under a survival claim action as provided under the New Jersey Transfer Inheritance Tax laws. The State’s estate tax and inheritance tax statutes can and should be read in pari materia because both laws address the same subject: the corpus or the estate of a decedent, and because assets includible in the estate for estate tax purposes are those which are transferred to a beneficiary for inheritance tax purposes. Therefore, the legislative intent to include the sums actually recovered under a survival claim action in a decedent’s estate for inheritance tax purposes also extends to their inclusion in the decedent’s estate for estate tax purposes. The recovered amounts are deemed to be the value of the survival claim action as of the decedent’s date of death.