Posted Date | Name of Case (Docket Number) | Type |
---|---|---|
May 25, 2023 |
ARBUS, MAYBRUCH & GOODE, LLC VS. DANIEL COHEN, ET AL. (L-2646-20, MONMOUTH COUNTY AND STATEWIDE)
(A-2168-21)
In this appeal from summary judgment in a breach of contract action, defendants argue plaintiff law firm violated rules of professional conduct by failing to disclose in its retainer agreement the unit of incremental billing – one tenth of an hour – it would utilize during the course of representation. Plaintiff and defendants entered two retainer agreements, both of which disclosed a required initial deposit, the hourly rates of each attorney at the firm, and which party was responsible for certain administrative costs. Plaintiff represented defendants for more than two years pursuant to the parties' retainer agreements, sending monthly and bimonthly invoices throughout the duration demonstrating work billed in increments of one-tenth of an hour. When defendants refused to remain current with outstanding fees, plaintiff ceased representation and instituted the breach of contract action. The trial court granted summary judgment. Defendants urged reversal on appeal. The court affirmed summary judgment as properly granted, and held the retainer agreement was lawful and ethical where, among other things, it sufficiently apprised the clients of the express terms of the agreement in accordance with RPC 1.5(b), and the parties' course of conduct for two years demonstrated assent to those terms. |
Appellate |
May 18, 2023 |
WILLIAM PACE, ET AL. VS. HAMILTON COVE, ET AL. (L-1076-22, HUDSON COUNTY AND STATEWIDE)
(A-0674-22)
Plaintiffs are tenants at a luxury apartment building complex. They claim they were defrauded by defendant landlords' knowingly false promises in its advertisements, brochures, and oral statements to prospective tenants that the apartment complex would have "elevated, 24/7 security" and that security personnel would be stationed 24/7 at a podium near each building's entrance. Plaintiffs allege they relied on these representations in deciding to lease the apartments at the rent level charged. Upon moving into the apartments, plaintiffs learned that the apartment complex's security cameras did not function, and security personnel were only stationed at the front of the building from approximately 11:00 a.m. to 5:00 p.m. on weekdays, with shorter hours on weekends, as opposed to being present 24/7, and at times were present during those hours when performing other assigned tasks. The lease contained a three-day attorney review clause and had several addendums, including a waiver of the right to file a class action against the landlord. The lease did not contain an arbitration agreement. Plaintiffs filed a class action complaint alleging common law fraud and violations of the New Jersey Consumer Fraud Act against their landlord. Prior to discovery or class certification, defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted, or, in the alternative, to strike plaintiffs' class action allegations. Defendants argued the class action waiver in plaintiffs' lease agreements were clear and unambiguous and the lease was not a contract of adhesion. Plaintiffs argued the lease was a contract of adhesion, the class waiver was unconscionable, and the caselaw upholding class action waivers were inapplicable because the contracts in those cases included an arbitration provision. The trial court denied the motion in its entirety. Defendants' motion for leave to appeal that interlocutory ruling was granted. The court affirmed the denial of defendants' motion, holding that a waiver of the right to maintain a class action is unenforceable absent an arbitration agreement. Noting that the class action waiver dismantled or disabled important procedures provided in our Part IV rules, and that the public policy of this state favors a class action where numerous claims involve a common nucleus of facts, the court adopts a bright-line rule that in the absence of an arbitration agreement, class action waivers are unenforceable as a matter of law and public policy. |
Appellate |
May 18, 2023 |
STATE OF NEW JERSEY VS. DONNIE E. HARRELL (19-12-0852, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
(A-1908-22)
In this appeal, the court considers the propriety of a Law Division order, excluding several allegations of sexual abuse against defendant that were memorialized in the child-victim's videorecorded statement to law enforcement. The trial judge had admitted the entire statement under the tender-years exception to the hearsay rule, N.J.R.E. 803(c)(27). At that time, the judge found the statement trustworthy, noting the alleged victim, who was eight years old when she gave her statement, would be called as a witness at trial. Prior to trial, the State informed the defense the child was unable to recall all but one incident. During the ensuing N.J.R.E. 104 hearing, the alleged victim, now fifteen years old, acknowledged she no longer recalled certain sexual conduct asserted in her tender-years statement. The trial judge granted defendant's in limine motion, limiting the child's testimony to the only allegation she recalled, and ordered her videorecorded statement redacted accordingly. The judge determined the child's lack of memory rendered her unavailable for cross-examination on the incidents she could not recall, thereby violating defendant's right of confrontation. During jury selection in the now-adjourned trial, the court granted the State's emergent application to file a motion for leave to appeal, granted leave, and now reverses the Law Division order. The court holds defendant's right of confrontation is not violated by admission of the child's entire videorecorded statement under N.J.R.E. 803(c)(27), previously deemed trustworthy by the trial judge, provided the victim testifies at trial and is subject to cross-examination. The court therefore concludes the trial judge improperly parsed, and erroneously excluded, those alleged incidents the victim does not recall. |
Appellate |
May 10, 2023 |
STATE OF NEW JERSEY VS. ANGELO MAURO (19-10-1682, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED)
(A-1900-22/A-2279-22)
In Docket No. A-1900-22, the court first granted the State leave to appeal from the propriety of a Law Division judge's pretrial decision that barred the admission of location data from the alleged victim's cell phone and a voice mail purportedly sent from the defendant to his co-defendant. The motion judge barred the evidence because it was provided by the State after the judge's December 9, 2021 decision that mandated the production of any outstanding discovery by January 6, 2022. While that appeal was pending, in Docket No. A-2279-22, the court also granted the State leave to appeal from a February 21, 2023 Law Division order issued by the same judge, denying the State's motion for reconsideration of an October 7, 2022 order. That order had barred the admission of two text messages allegedly sent by defendant as cumulative to other stipulated N.J.R.E. 404(b) evidence and fraught with impermissible hearsay. The court considered the lengthy procedural history in view of the governing legal principles, including its discretionary standard of review. Unable to conclude on the record provided that the motion judge abused his discretion in either appeal, the court affirmed.
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Appellate |
May 9, 2023 |
State v. Izaia M. Bullock
(A-34-21 ; 086196)
Defendant’s statements in the courtyard and stationhouse were both properly suppressed. Under the totality of the circumstances, the courtyard statements must be suppressed because the Miranda warnings given in the courtyard were lacking and could not have apprised defendant of his rights such that any waiver and agreement to speak to police was knowingly, voluntarily, and intelligently made. By the time defendant arrived at the police department and was given full Miranda warnings, he had already admitted to the very crime that the officers were investigating. Defendant had “let the cat out of the bag” with his admissions, see State v. Carrion, 249 N.J. 253, 275-76 (2021), so the psychological pressure of having already confessed was not cured by the administration of Miranda warnings prior to the interview at the station. |
Supreme |
May 9, 2023 |
ACCOUNTEKS.NET, INC., ETC. VS. CKR LAW, LLP, ET AL. (C-000017-18, ESSEX COUNTY AND STATEWIDE)
(A-1067-20)
Plaintiff information technology firm brought multiple claims against defendants, its former employee and the law firm that hired him as its in-house technology specialist. Among other claims, plaintiff alleged the former employee breached his non-compete agreement with plaintiff by taking the job with the law firm, a long-term client of plaintiff. Plaintiff also alleged the law firm tortiously interfered with the non-compete agreement between plaintiff and its former employee. After a trial, the Chancery Division enforced the non-compete agreement and found the law firm had tortiously interfered with the agreement between plaintiff and its former employee. The Chancery Division entered judgment against defendants for damages, including awarding of attorney's fees against the law firm as damages for its tortious interference. Defendants appealed. On appeal, the court held the Chancery Division properly awarded attorney's fees as damages for the law firm's tortious interference with contractual relations as an exception to the American Rule, pursuant to DiMisa v. Acquaviva, 198 N.J. 547 (2009). |
Appellate |
May 8, 2023 |
Levy, Morris v. City of Long Branch
(000448-2021)
LOCAL PROPERTY TAX Tax Court: Levy v. City of Long Branch, Docket No. 000448-2021, opinion by Sundar, P.J.T.C., decided May 5, 2023. For plaintiff - Michael I. Schneck (Schneck Law Group, LLC, attorney) and Robert E. Spiotti (Spiotti & Associates, PC, attorney); for defendant – Shaun Peterson (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorney). Held: Parties reached a global settlement agreement as to plaintiff’s complaint in the Tax Court for tax year 2021 and his petition before the county board of taxation for tax year 2022. The stipulation in the Tax Court matter was silent on the Freeze Act’s application. The stipulation in the County Board matter included plaintiff’s express waiver of the Freeze Act. Based on the four corners of the Tax Court stipulation, the court found that plaintiff did not waive application of the Freeze Act in the Tax Court matter. Based on the record, the court found that plaintiff’s waiver of the Freeze Act in the County Board matter did not extend to, nor would be implied in settlement of the Tax Court matter. The court was unpersuaded that the only base year in a multi-year settlement must be the last year of the value judgment. The court was also unpersuaded that, without more, the County Board’s judgment is proof of a change in value for Freeze Act purposes. (15 Pages) |
Tax |
May 4, 2023 |
DCPP VS. A.P., L.R., T.C., AND J.P., IN THE MATTER OF D.P. AND T.R. (FN-13-0151-19, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
(A-3514-21)
Defendant appeals an order entered in the Family Part permitting the Division of Child Protection and Permanency to use expunged records obtained from the Monmouth County Prosecutor's Office in a Title 9 litigation concerning the alleged abuse and neglect of his son. Defendant argues the trial court erred by authorizing the Division to utilize records that were expunged, sealed automatically, and precluded any subsequent use. We conclude the Division was permitted to use the expunged records pursuant to N.J.S.A. 2C:52-19 because the statute allows the release and use of expunged records upon good cause shown and affirm. |
Appellate |
May 4, 2023 |
State v. Joao C. Torres
(A-15-22 ; 086812)
The Court endorses and applies the two-factor test of State v. Lentz, 463 N.J. Super. 54, 70 (App. Div. 2020), authorizing delayed warrantless searches of a person incident to that person’s arrest so long as both (1) the delay itself and (2) the scope of the search were objectively reasonable. The totality of circumstances here establishes such reasonableness, particularly given the officers’ observation and video footage showing that defendant appeared to be removing some substance from his fingers and rubbing his clothing while he was being interviewed, as well as the risk that biological evidence would dissipate during the delay while the warrant application was processed. |
Supreme |
May 3, 2023 |
State v. Anthony Miranda
(A-67-21 ; 086773)
N.D. had apparent authority to consent to the officer’s search of the storage trailer. However, the exigent-circumstances exception to the warrant requirement does not justify the officer’s search of the black bag or his seizure of the weapons in that bag, and the denial of defendant’s motion to suppress constituted error. |
Supreme |
May 3, 2023 |
IN THE MATTER OF REGISTRANT R.H., ET AL. (ML-19-08-0084 AND ML-08-04-0076, GLOUCESTER AND CAMDEN COUNTIES AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED)
(A-3543-20/A-0203-22)
Registrants filed motions to terminate their Megan's Law registration requirement under N.J.S.A. 2C:7-2(f), arguing the fifteen-year offense-free requirement on juveniles adjudicated delinquent of qualifying Megan's Law offenses did not apply. The court affirmed the denial of registrants' motions to terminate their Megan's Law obligations because both juveniles were age fifteen or older at the time of their sexual offenses and N.J.S.A. 2C:7-2(f) applies to every person required to register under Megan's Law, including juveniles. |
Appellate |
May 2, 2023 |
Christopher Gill v Director, Division of Taxation
(004035-2021)
STATUTE OF LIMITATIONS, RESPONSIBLE PERSON LIABILITY FOR GROSS INCOME TAX-ER AND SALES AND USE TAX. Tax Court: Gill v. Director, Division of Taxation, Docket No.004035-2021, opinion by Fiamingo, J.T.C., decided May 1, 2023. For plaintiff - Maria L. Dooner; for defendant Lindsey R. Curewitz (Matthew Platkin, Attorney General of New Jersey, attorney). HELD: Plaintiff moved to apply the limitations period for assessment of tax to imposition of responsible person liability for gross income tax withholding under N.J.S.A. 54A:9-6(f) and (g) and for sales and use tax under N.J.S.A. 54:32B-2(w). Director opposed and moved to uphold notification of responsible person status issued beyond limitation periods of the Gross Income Tax Act and Sales and Use Tax Act. The court ruled that the notification of responsible person for purposes of imposing the penalty assessed by N.J.S.A. 54A:9-6(f) and/or (g) for gross income tax employer withholding required by N.J.S.A. 54A:7-1 et seq. was subject to the limitations period applicable to assessment of gross income tax. The court ruled that no limitations period applied to the notification of responsible person liability for Sales and Use Tax, as such tax by statute was assessed against the responsible person upon the filing of the return by the seller.
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Tax |
May 1, 2023 |
MERCK & CO., INC., ET AL. VS. ACE AMERICAN INSURANCE COMPANY, ET AL. (L-2682-18, UNION COUNTY AND STATEWIDE) (CONSOLIDATED)
(A-1879-21/A-1882-21 ; A-1879-21/A-1882-21)
In 2017, a malware/cyberattack infected Merck's computer and network systems. Prior to that date, someone had gained access to the computer systems of a Ukrainian company that had developed an accounting software called M.E. Doc used by Merck and other companies in Ukraine. The malware was delivered into the accounting software. Ultimately, over 40,000 machines in Merck's network were infected, resulting in "massive disruptions" to Merck's global operations. The malware spread to at least sixty-four different countries, including Russia. |
Appellate |
May 1, 2023 |
JEFFREY ACHEY, ET AL. VS. CELLCO PARTNERSHIP, ET AL. (L-0160-22, MIDDLESEX COUNTY AND STATEWIDE)
(A-3639-21 ; A-3639-21)
In this class action matter arising out of a contract dispute, plaintiffs appeal from a July 15, 2022 order granting defendants' motion to stay proceedings against Verizon and to compel arbitration in accordance with the arbitration agreement appearing in the Verizon Customer Agreement. In an oral opinion of the same date, the trial judge first severed a limitation on damages provision from the agreement before enforcing the arbitration clause. In reaching its decision, the court did not discuss any provision of the agreement other than the limitation on damages and severability clause. Nor did the trial judge address why the reasoning of MacClelland v. Cellco P'ship, 609 F. Supp. 3d 1024 (N.D. Cal. 2022), which found the exact same arbitration clause unenforceable as permeated with unconscionability, should not apply with equal force here. |
Appellate |
May 1, 2023 |
JOHN CAUCINO VS. BOARD OF TRUSTEES, ETC. (TEACHERS' PENSION AND ANNUITY FUND)
(A-1733-21 ; A-1733-21)
Pursuant to N.J.S.A. 18A:66-36 (Section 36), a member of the Teachers' Pension and Annuity Fund (TPAF) who has "completed [ten] years of service" and has "separated voluntarily or involuntarily from . . . service[] before reaching service retirement age" is eligible to receive deferred retirement benefits, provided the separation was "not by removal for conduct unbecoming a teacher or other just cause." N.J.S.A. 18A:6-7.1 permanently disqualifies teachers and other school employees who have been convicted of certain crimes from employment in all school systems under the supervision of the Department of Education. |
Appellate |
April 18, 2023 |
ESTATE OF RICHARD M. LASIW, ET AL. VS. PEDRO M. PEREIRA M.D., ET AL. (L-0387-20, BERGEN COUNTY AND STATEWIDE)
(A-1231-21)
In this medical malpractice litigation, plaintiff, individually and as executrix of her late husband's estate, moved to compel defendants to permit her expert to conduct an onsite inspection of decedent's electronic medical record (EMR). Plaintiff contended that pursuant to Rule 4:18-1, she had the right to inspect and examine the "metadata" associated with the EMR, which exceeded more than 2,000 pages and had already been produced in PDF format by defendants. Plaintiff agreed that defendants would control the log in to the computer system and the mouse guiding the expert's review. Plaintiff also agreed not to access the system through the use of thumb drives or discs to copy any information. Plaintiff also sought production of an "audit trail" of the EMR for nearly a full year after decedent's discharge. Defendants objected, arguing the discovery request was unduly burdensome and posed security risks and the risk of exposing other patient's EMR. They argued that plaintiff should identify specific entries in the record for which she sought metadata, and they would produce it, subject to assertions of confidentiality or privilege. Defendants also objected to producing the audit trail, claiming it, too, was unduly burdensome and irrelevant. The Law Division judge granted plaintiff's motion, and the court granted defendants leave to appeal. The court concluded that plaintiff was entitled to access metadata in decedent's EMR pursuant to Rules 4:10-2(f) and 4:18-1, and that defendants bore the burden of demonstrating the discovery request was unduly burdensome. The court agreed with the motion judge's conclusion that defendants failed to do so, and the proposed inspection was reasonable. The court affirmed that portion of the judge's order granting the inspection as modified by reasonable restrictions, including a time limit for the inspection of four hours. The court, however, reversed that portion of the judge's order requiring defendants to produce a post-discharge audit trail that extended beyond the date of the last entries made to decedent's EMR, finding plaintiff failed to demonstrate the potential for relevant information from such a broad request. |
Appellate |
April 6, 2023 |
STEPHANIE ANGUS VS. BOARD OF EDUCATION, ETC. (NEW JERSEY COMMISSIONER OF EDUCATION)
(A-1979-21)
The court affirms the New Jersey Commissioner of Education's final agency decision finding petitioner Stephanie Angus is entitled to sick leave under N.J.S.A. 18A:30-1 during the period the Board of Education of the Borough of Metuchen excluded Angus from working in her position as a tenured teacher, pursuant to a directive from the New Jersey Department of Health, because of her exposure to a person who tested positive for COVID-19. The court determined Angus qualified for sick leave under N.J.S.A. 18A:30-1's plain language, which in part defines sick leave to include an absence from an employee's "post of duty . . . because he or she has been excluded from school by the school district's medical authorities on account of a contagious disease." The court rejected the Board of Education's claim N.J.S.A. 18A:30-1 qualifies an employee for sick leave when the employee is excluded from school "on account of a contagious disease" only where the employee personally suffers from the disease. The court reasoned the Board's interpretation is not supported by the statute's plain language. The court also determined acceptance of the Board of Education's interpretation of N.J.S.A. 18A:30-1 would render the exclusion-from-work-on-account-of-a-contagious-disease sick leave qualification superfluous because the statute otherwise separately defines sick leave to include an employee's absence from work where the employee suffers a personal disability due to an illness. |
Appellate |
April 6, 2023 |
J.D. VS. A.M.W. (FV-04-0695-22, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
(A-1269-21)
Plaintiff appeals from the order of the Superior Court, Chancery Division, Family Part, Camden County's dismissing her domestic violence complaint against defendant. The Family Part found plaintiff failed to satisfy her burden under the second prong of Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). On appeal, plaintiff argued the trial court misapplied the facts to the law regarding Silver's "second inquiry." The court concluded plaintiff satisfied her burden under both prongs of Silver, and also held the Family Part erred when it considered whether plaintiff's current husband and defendant's father could protect her in the future, when the proper focus of a Silver "second inquiry" should be on defendant's likelihood to continue his course of abusive behavior, not whether external factors exist which might thwart defendant's efforts to continue the abuse. The court reversed and remanded to the Family Part for entry of a final restraining order against defendant. |
Appellate |
April 5, 2023 |
STATE OF NEW JERSEY VS. MARESE WASHINGTON, JR. (22-05-0340, CUMBERLAND COUNTY AND STATEWIDE)
(A-0733-22)
At issue in this appeal is whether a warrant is required to seize a vehicle pursuant to the plain-view exception. The court granted the State leave to appeal from a Law Division order, which suppressed evidence seized from a motor vehicle that police believed defendant used during the commission of a fatal shooting. The motion judge essentially reasoned police improperly impounded the car because probable cause did not arise spontaneously prior to the warrantless seizure. The judge suppressed the evidence seized, following issuance of a warrant to search the car, as fruit of the poisonous tree. The State argued police were permitted to seize the vehicle pursuant to the plain-view exception to the warrant requirement while they awaited issuance of the search warrant. The State further contended the "unforeseeability and spontaneity" requirement espoused in State v. Witt, 223 N.J. 409 (2015), applies to the automobile – not the plain-view – exception to the warrant requirement. The court concludes the motion judge mistakenly conflated the discrete rules for the warrantless search and seizure of an automobile, and erroneously reintroduced the inadvertence prong of the plain-view exception to the warrant requirement, eliminated by our Supreme Court in State v. Gonzales, 227 N.J. 77 (2016). The court therefore reverses the Law Division order and remands for further proceedings. |
Appellate |
April 4, 2023 |
DELAWARE RIVER JOINT TOLL BRIDGE COMMISSION, ET AL. VS. GEORGE HARMS CONSTRUCTION CO., INC., ET AL. (L-2394-16, MERCER COUNTY AND STATEWIDE)
(A-1484-20)
Plaintiff Delaware River Joint Toll Bridge Commission (Commission) is a bi-state entity created by an interstate compact between the State of New Jersey and the Commonwealth of Pennsylvania and approved by the United States Congress. In this matter, arising out of a construction project to replace the Scudder Falls Bridge that connects the two states, the court considered whether the Commission was authorized to approve, use, and enforce a project labor agreement (PLA) as a mandatory requirement in its bid specifications. This mandate required all bidding contractors and subcontractors to enter into a PLA with certain named unions affiliated with the local building and construction trades councils, recognizing those unions as the sole and exclusive bargaining representatives of the bidder's project workforce. Defendant George Harms Construction Co. was prevented from bidding on the project because it was a party to a collective bargaining agreement with United Steel Workers (USW), which was excluded from the PLA. Harms threatened to seek an injunction if the Commission did not add USW as a signatory union to the PLA. Only one company bid on the project, submitting a bid $69 million over the projected cost of the project and $71 million more than Harms' projected bid. The Commission sought a declaratory judgment permitting it to award the contract, including the PLA, to the successful bidder. Harms answered and asserted numerous counterclaims, including a violation of competitive bidding laws. The trial court dismissed the complaint as moot (the project was completed during the litigation) and granted summary judgment to the Commission on the counterclaims. The court preliminarily determined the issue was not moot because of the importance of interstate compacts and the high likelihood that the Commission would use a PLA in a future contract. The issue, then, was whether the Commission had the authority under its compact to approve and use a PLA in its bidding process. The compact itself is silent on PLAs. Therefore, the panel looked to the two states' treatment of PLAs. The court engaged in an extensive analysis of the case law and legislative history in New Jersey and Pennsylvania regarding PLAs. Currently New Jersey has a statute governing PLAs, N.J.S.A. 52:38-1 to -7. Pennsylvania does not have any legislation. The case law, emanating from the Commonwealth Court disfavors PLAs unless the project involves "extraordinary circumstances" and the PLA treats union and nonunion contractors evenly. Therefore, New Jersey and Pennsylvania do not have parallel or substantially similar state legislation or common law regarding the use of PLAs. The court concluded the Commission did not have the power to create and authorize use of the mandatory PLA for its project because: (1) there is no express authority for unilateral action in the compact; (2) New Jersey and Pennsylvania have not enacted complementary or parallel legislation and do not have similar common law on PLAs; and (3) the Commission has not consented to exercise of single-state jurisdiction. The court affirmed the dismissal of the declaratory judgment complaint, albeit for different reasons than articulated by the trial court. The court reversed the dismissal of the counterclaims and remanded to the trial court. |
Appellate |