Posted Date | Name of Case (Docket Number) | Type |
---|---|---|
April 3, 2023 |
JEFFREY SANTANA VS. SMILEDIRECTCLUB, LLC (L-3156-21, HUDSON COUNTY AND STATEWIDE)
(A-2433-21 ; A-2433-21)
Plaintiff filed a products-liability complaint against defendant, alleging the invisible tooth aligners he purchased on-line damaged his teeth and resulted in lasting injuries. Defendant moved to dismiss the complaint, citing an arbitration provision that was embedded in the first of three hyperlinked underlined documents that appeared in different colored font. The hyperlinked document, entitled "Informed Consent," included not only the arbitration agreement but also explanations of the benefits and risks of using the aligners, representations by plaintiff regarding his oral health, and his consent to the treatment. Users could not proceed to open an account and order the aligners unless they clicked on a box next to the three hyperlinked documents, "I Agree," and another button, "FINISH MY ACCOUNT." |
Appellate |
March 31, 2023 |
PEGGY BIRMINGHAM, ET AL. VS. TRAVELERS NEW JERSEY INS. CO., ET AL. (L-1009-20, GLOUCESTER COUNTY AND STATEWIDE)
(A-0429-21 ; A-0429-21)
|
Appellate |
March 30, 2023 |
State v. Andre Higgs
(A-28-21 ; 085863)
The Court reverses as to all three issues and remands for a new trial. The Court prescribes a framework for trial courts to assess requests for access to internal affairs records and provides guidance for the application of that framework on remand in this case. Because the defense argues Officer Lee discharged his firearm first, defense counsel could potentially be allowed to explore Officer Lee’s history of past shootings on cross-examination. On remand, defendant will be entitled to access the internal affairs file as outlined in the Court’s opinion, and that evidence may be used to cross-examine Officer Lee subject to any objections pursuant to N.J.R.E. 403 or 404(b). Detective Green’s testimony was based entirely on his lay opinion from watching the video, which was impermissible under N.J.R.E. 701. The video was already in evidence, so the jury was able to view the video and determine for themselves what the video showed. Finally, applying the factors in N.J.R.E. 609(b)(2), it was error for the trial court to admit defendant’s remote convictions because the State did not meet its burden of establishing that the probative value outweighed the prejudicial effect of admitting the old convictions. |
Supreme |
March 29, 2023 |
STATE OF NEW JERSEY VS. JERRY ROSADO (2022-0076-0514, CAPE MAY COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
(A-0516-22 ; A-0516-22)
|
Appellate |
March 28, 2023 |
GOLD TREE SPA, INC., ET AL. VS. PD NAIL CORP., ET AL. (L-3007-20, MONMOUTH COUNTY AND STATEWIDE)
(A-3748-21)
The court affirms Law Division's orders denying defendants' motion to enforce an unsigned settlement agreement arising from a voluntarily entered mediation. The court agreed with the Law Division that, in accordance with Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC, 215 N.J. 242, 262 (2013), no agreement was reached because the parties did not sign the agreement before the mediation concluded. The court, as did the Law Division, rejected defendants' argument that Willingboro's holding did not apply because, there, the mediation was court-ordered, and, in the present case, the mediation was voluntary. Based upon the principles set forth in Willingboro, whether mediation is court-ordered or voluntary is a distinction without a difference. Furthermore, the parties' post-mediation conduct evidence there was no meeting of the minds that a settlement was reached. |
Appellate |
March 24, 2023 |
STATE OF NEW JERSEY VS. ANDREW HIGGINBOTHAM (22-02-0502, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
(A-2548-21)
Defendant appeals from the trial court's order denying his motion to dismiss an indictment, which charged him with fifteen counts of second-degree child endangerment, N.J.S.A. 2C:24-4(b)(4), (5)(a)(i), (5)(a)(ii); and one count of third-degree child endangerment, N.J.S.A. 2C:24-4(b)(5)(b)(iii). These provisions were enacted in 2018 as part of the child erotica amendment to the endangerment statute. L. 2017, c. 141 (the child erotica amendment). Finding that the statute is both unconstitutionally vague and overbroad, the court reversed. N.J.S.A. 2C:24-4(b)(4) makes it a second-degree crime to photograph or film a child in a sexually suggestive manner, which necessarily requires the viewing and possession of such material. N.J.S.A. 2C:24-4(5)(a)(ii) makes it a second-degree crime to possess child erotica with intent to distribute it. Finally, N.J.S.A. 2C:24-4(5)(b)(iii) makes it a third-degree crime to possess child erotica. The amendment's expanded definition of child pornography, which includes child erotica (i.e., images that "portray a child in a sexually suggestive manner"), is at odds with New York v. Ferber, 458 U.S. 747 (1982); Osborne v. Ohio, 495 U.S. 103 (1990); and Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The child erotica amendment is overbroad because it precludes the private possession of material the United States Supreme Court has said is protected by the First and Fourteenth Amendments. Based on the amendment's definition of "portray a child in a sexually suggestive manner," any image of a child could appeal to sexual interests and thus be proscribed. Therefore, the amendment is also vague because a person of ordinary intelligence would not understand the limits of permissible conduct. |
Appellate |
March 21, 2023 |
IN THE MATTER OF THE APPEAL OF THE DENIAL OF M.U.'S APPLICATION FOR A HANDGUN PURCHASE PERMIT, ETC. (GPA-0004-20, BERGEN COUNTY AND STATEWIDE)
(A-2535-20 ; A-2535-20)
The court also holds that expunged records may be considered when determining whether to grant a HPP or revoke a FPIC. The court affirms the denial of appellant's HPP application and revocation of his previously issued FPIC. The court reverses the forfeiture and compelled sale of appellant's firearms under N.J.S.A. 2C:58-3(f), which addresses revocation of FPICs and carry permits but provides no basis for the forfeiture of firearms already possessed. |
Appellate |
March 16, 2023 |
State v. Joseph S. Macchia
(A-49-21 ; 086334)
The trial court properly instructed the jury on the State’s burden in disproving self-defense and no specific unanimity charge was required. |
Supreme |
March 16, 2023 |
Y.H. AND K.W.C. VS. T.C., ET AL. (L-2488-20, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
(A-1966-21)
In this interlocutory appeal, the court considered the protective breadth of the Expungement of Records statute, N.J.S.A. 2C:52-1 to -31.1 (the expungement statute), against the statutory provisions regulating Transportation Network Companies N.J.S.A. 39:5H-1 to -27 (the TNC statute), where a conviction for aggravated assault bars employment as a rideshare driver and Uber's potential culpability under a theory of negligent hiring or employment. T.C., an Uber driver, had a previous conviction for aggravated assault of a law enforcement officer. Uber had knowledge of T.C.'s prior conviction for aggravated assault—in the form of the two background checks—for some period of time prior to the entry of an order of expungement. The court addressed the narrow issue of whether the expungement gives T.C.'s employer the ability to assert T.C.'s rights so as to imply ignorance of the prior assault conviction. The court read N.J.S.A. 2C:52-19 to prevent the evidence of an expunged record to be used against the person for whom the expungement is meant to benefit: the recipient of the expungement. The court does not read N.J.S.A. 2C:52-19 to give instant cover to third parties without further examination of that third-party's conduct, duty and responsibility in a negligent hiring claim. The court remanded for further development of the record. |
Appellate |
March 16, 2023 |
NORMA DAVIS VS. DISABILITY RIGHTS NEW JERSEY, ET AL. (L-4093-20, UNION COUNTY AND STATEWIDE) (CONSOLIDATED)
(A-0269-22/A-0270-22)
In these appeals, calendared back-to-back and consolidated to issue a single opinion, the court granted plaintiff Norma Davis leave to challenge two separate Law Division discovery orders arising from her lawsuit alleging that defendants Disability Rights New Jersey, Gwen Orlowski, and Ellen Catanese terminated her employment in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50. The orders were stayed pending these appeals. In A-0269-22, the trial court order (cell phone record order) granted in part and denied in part plaintiff's motion to quash defendants' subpoena to her cellular provider seeking her cell phone records. Plaintiff used her cell phone to perform her work duties while allowed to work from home. The order required plaintiff: (1) to produce a redacted copy of her personal cell phone records indicating work-related calls and texts made and received during her normal workday from January 1, 2018 to January 31, 2020; and (2) to submit to the court a copy of the redacted records provided to defendants, as well as a Vaughn[1] index of an unredacted copy of the records showing all calls and texts made and received during that period. National Employment Lawyers Association/New Jersey (NELA) filed an amicus brief in support of plaintiff. In A-0270-22, the trial court order (social media posts order) granted in part and denied in part defendants' motion to compel plaintiff to provide copies of her private social media posts, profiles, and comments (collectively "social media posts" or "social media content") from January 1, 2020 to August 29, 2022, depicting an emotion, attaching a picture of herself, or mentioning: Disability Rights or her lawsuit's allegations; her vacations or celebrations; her being ill or worrying about being ill; and her work. NELA and New Jersey Association of Justice (NJAJ) filed amicus briefs in support of plaintiff. The court is unpersuaded by plaintiff's and amici's arguments that the trial judge abused his discretion in entering orders which abridged her privacy interests. The court concludes the judge appropriately considered plaintiff's privacy interests in her social media posts and cell phone bills and did not err in allowing defendants' discovery of limited private social media posts and cell phone bills to defend against her claims that her termination violated the LAD, causing her emotional distress. The court, however, remands for the judge to add the requirement in the social media posts order –– similar to the cell phone record order –– that plaintiff submit a redacted copy of her private social media posts to defendants and the trial court as well as an unredacted copy of the posts with a Vaughn index to the trial court.
[1] As pronounced in Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973). |
Appellate |
March 15, 2023 |
Harold Hansen v. Rite Aid Corp.
(A-47-21 ; 086430)
The Court concurs with the Appellate Division that the trial court properly exercised its discretion when it set the reasonable hourly rate for plaintiff’s counsel’s work, assessed the number of hours reasonably expended by plaintiff’s counsel in pretrial proceedings and at trial, reduced the lodestar because of plaintiff’s limited success and other factors, and determined plaintiff’s application for an award of costs. |
Supreme |
March 13, 2023 |
Kevin Malanga v. Township of West Orange
(A-45-21 ; 086087)
Like many older buildings, the Library needed improvements in a number of areas. But the record did not establish that it suffered from obsolescence, faulty arrangement, or obsolete layout in a way that harmed the welfare of the community. To designate property for redevelopment under the LRHL, a municipality must demonstrate that certain specified problems exist and that they cause actual detriment or harm. There is insufficient evidence in the record to meet that standard. The designation of the Library as an area in need of redevelopment is invalid. |
Supreme |
March 8, 2023 |
State v. Kyle A. Smart
(A-6-22 ; 087315)
The circumstances giving rise to probable cause in this case were not “unforeseeable and spontaneous.” Those circumstances included investigating previous information from the CI and concerned citizen about defendant, the vehicle, and narcotics trafficking in the area; lengthy surveillance of defendant and the vehicle; reasonable and articulable suspicion that defendant had engaged in a drug deal; and a positive canine sniff of the vehicle. The Court therefore affirms the order suppressing the physical evidence seized from the vehicle. |
Supreme |
March 7, 2023 |
JANAN PFANNENSTEIN, ET AL. VS. CHRISTINE SURREY, D.O., ET AL. (L-0791-21, BURLINGTON COUNTY AND STATEWIDE)
(A-3005-21)
At issue in this medical negligence matter is the kind-for-kind specialty requirement embodied in the New Jersey Medical Care Access and Responsibility and Patients First Act (PFA), N.J.S.A. 2A:53A-37 to -42. This appeal requires the court to determine whether the affidavit of merit (AOM) of a board-certified hematology expert satisfied the PFA's equivalency requirement where neither defendant doctor specialized, nor was board certified, in hematology when they rendered care to the decedent. Instead, both defendants specialized in internal medicine at the time of the alleged treatment, and one was board certified in that specialty, but plaintiff's proffered expert did not specialize in internal medicine. The trial court denied defendants' motion to dismiss plaintiff's complaint for failure to provide a sufficient AOM, essentially concluding the affiant's hematology subspecialty was "subsumed" in defendants' internal medicine specialty and, as such, the affiant was qualified to opine that defendants deviated from the standards of medical care by improperly prescribing heparin to the decedent. The court granted defendants leave to appeal from the April 14, 2022 Law Division order. The court holds the PFA's kind-for-kind specialty requirement embodied in N.J.S.A. 2A:53A-41(a) is not satisfied when the AOM's affiant specialized in a subspecialty of the treating doctor's specialty but did not specialize, nor was board certified, in the physician's specialty when the alleged medical negligence occurred. The court therefore concludes plaintiff failed to satisfy the PFA's equivalency requirements and reverse the trial court's order denying defendants' dismissal motion. In doing so, the court rejects plaintiff's alternate argument that she satisfied the waiver exception to the PFA under N.J.S.A. 2A:53A-41(c), which would have rendered moot defendants' appeal. |
Appellate |
March 6, 2023 |
GEORGE CASTANO VS. WENDELL D. AUGUSTINE, ET AL. (L-0137-20, UNION COUNTY AND STATEWIDE)
(A-3925-21)
The court granted defendants leave to appeal from the Law Division's orders denying summary judgment and reconsideration. Plaintiff was injured while driving his motorcycle when defendants' tractor trailer pulled into plaintiff's lane of travel. Plaintiff admitted having several drinks throughout the day and that he was speeding at the time of the accident, but, at his deposition, equivocated as to whether he was intoxicated. Blood was drawn at the hospital, and defendants' expert extrapolated from that sample that plaintiff's BAC at the time of the accident was between .159 and .162. Police issued no motor vehicle summonses to plaintiff. In moving for summary judgment, defendants relied upon N.J.S.A. 39:6A-4.5(b), which provides: Any person who is convicted of, or pleads guilty to, operating a motor vehicle in violation of [N.J.S.A.] 39:4-50, [N.J.S.A. 39:4-50.4a], or a similar statute from any other jurisdiction, in connection with an accident, shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident. [(Emphasis added).] The motion judge denied the motion, concluding that the statute did not apply to plaintiff because he was not convicted of DWI and also because there were material disputed facts as to whether plaintiff was legally intoxicated at the time of the accident. The court affirmed, agreeing with the motion judge that there were material factual disputes as to plaintiff's state of intoxication at the time of the accident. More importantly, the court concluded the plain language of the statute denied a cause of action only to those plaintiffs actually convicted of DWI. |
Appellate |
March 6, 2023 |
LEONOR ALCANTARA, ET AL. VS. ANGELICA ALLEN-MCMILLAN, ET AL. (NEW JERSEY COMMISSIONER OF EDUCATION)
(A-3693-20)
Appellants, parents of children enrolled in the Lakewood Public School District (District or Lakewood), filed a petition alleging the District was not providing its public-school students a thorough and efficient education as required by our State's Constitution. N.J. Const. art. VIII, § 4, ¶ 1. They contend this is due to the failure of the New Jersey Department of Education (DOE) to adequately fund the District. To that end, they assert the School Funding Reform Act (SFRA), N.J.S.A. 18A:7F-43 to -70, which sets certain standards for the DOE, is unconstitutional as applied to Lakewood. The record demonstrates Lakewood's school district is in a unique and precarious position. Due, in large part, to demographic trends in the area. Lakewood Township has seen a population rise in recent decades, primarily resulting from a thriving Orthodox Jewish community. As a result of this demographic shift, the township has approximately 37,000 school-aged children, however, only about 6,000 are enrolled in the secular public schools. The majority—eighty-four percent—are enrolled in private religious schools. Testimony before the Administrative Law Judge (ALJ) established this demographic trend is likely to continue and accelerate. Like other districts, Lakewood's state-issued school aid is calculated based upon its 6,000 enrolled public-school students. The total budget for the most recent school year at the time of that decision was $143.45 million. Of that, over half—$78 million—went to transportation and special education tuition for non-public students. This is an abnormal and unsustainable imbalance. The court concluded the record generated before the ALJ cannot fairly be said to support a finding Lakewood's students are receiving a constitutionally sound education. The court held the Commissioner utilized an incorrect standard in rejecting the ALJ's finding, and further held the Commissioner owed appellants a thorough review of their substantive argument: the funding structure of the SFRA was unconstitutional as applied to Lakewood's unique demographic situation. The court reversed and remanded for the agency to consider the substantive arguments pertaining to SFRA in light of our Supreme Court's previous directive in Abbott ex rel. Abbott v. Burke (Abbott XX), 199 N.J. 140, 146 (2009): the State has a continuing obligation to "keep SFRA operating at its optimal level" and "[t]here should be no doubt that we would require remediation of any deficiencies of a constitutional dimension, if such problems do emerge." |
Appellate |
March 3, 2023 |
KRISTIN K. M. STRICKLAND, ET AL. VS. FOULKE MANAGEMENT, CORP. (L-1800-21, CAMDEN COUNTY AND STATEWIDE)
(A-0455-21 ; A-0455-21)
In this matter arising out of the purchase of a vehicle, the court considered whether parties may expand the scope of judicial review of an arbitration agreement governed by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16. The agreement here contained a clause that permitted a court to review an arbitrator's award for errors of New Jersey law. Guided by the United States Supreme Court's holding in Hall St. Assocs., LLC v. Mattel, Inc., 552 U.S. 576 (2008), the court concluded that when the FAA controls an arbitration agreement, its vacatur terms are exclusive and cannot be modified by contract. Therefore, the pertinent clause in the arbitration agreement is unenforceable and severable from the remainder of the agreement. The court affirmed the trial court's order dismissing plaintiffs' complaint seeking to vacate the arbitration award. |
Appellate |
March 1, 2023 |
CHRISTOPHER MAIA, ET AL. VS. IEW CONSTRUCTION GROUP (L-1842-22, MIDDLESEX COUNTY AND STATEWIDE)
(A-4012-21 ; A-4012-21)
|
Appellate |
Feb. 27, 2023 |
NASIR MEMUDU, ETC. VS. JOSHUA M. GONZALEZ, ET AL. (L-8102-20, MIDDLESEX COUNTY AND STATEWIDE)
(A-0110-22 ; A-0110-22)
This appeal raises the novel issue of whether the statutory bar set forth in N.J.S.A. 39:6A-4.5(a) precludes plaintiff's wrongful death and survivor claims stemming from the second of two separate motor vehicle accidents occurring a half hour apart at the same location, the latter of which resulted in the death of the uninsured driver as he attempted to retrieve a cell phone from his disabled vehicle. In considering this question, the court addressed whether decedent was "operating" his uninsured vehicle at the time of the second accident for the purposes of N.J.S.A. 39:6A-4.5(a). The court further distinguished Perrelli v. Pastorelle, where the Supreme Court determined the statutory bar to recovering damages under N.J.S.A. 39:6A-4.5(a) applied to the owner of an uninsured vehicle, even where the owner was injured while a passenger in the vehicle. 206 N.J. 193, 208 (2011). The court ultimately concluded the statutory bar pursuant to N.J.S.A. 39:6A-4.5(a) was not implicated because decedent was not operating his vehicle. |
Appellate |
Feb. 21, 2023 |
SCOTT W. ADAMS, ETC. VS. STEVEN YANG, M.D., ET AL. (L-1903-15, MERCER COUNTY AND STATEWIDE)
(A-0052-22)
In this medical malpractice matter, defendants Herve Boucard, M.D. and Hamilton Gastroenterology Group, PA appeal from a July 26, 2022 order, which denied defendants' motion to bar the standard of care opinions of plaintiff's expert, Dr. Andrew Bierhals, at trial. That expert opined that codefendant Yang, who settled prior to trial, did not deviate from the standard of care, contrary to plaintiff's prior position that Yang (as well as Boucard and others) was negligent. On appeal, defendants argue that Glassman v. Friedel, 249 N.J. 199 (2021), which precludes a plaintiff from disavowing the negligence of an initial tortfeasor who settled in a later action against a successive tortfeasor, should be extended to cases involving a settling joint tortfeasor. The court concludes that Glassman is expressly limited to successive tortfeasors and an extension of its holding to joint tortfeasors is not warranted. Glassman sets forth a method of fixing damages caused by a first, independent source of injury to afford a credit to a successive tortfeasor who would otherwise have no remedy against the settling tortfeasor. Glassman's assignment of damages to a preceding event is not possible where, as here, plaintiff seeks to establish fault as to a single, indivisible injury where two or more persons are subject to common liability. Equally important is the fact that, unlike a successive tortfeasor, joint tortfeasors are not left without remedies against a settling codefendant. Whereas Glassman expressly prohibits an allocation of fault against an initial tortfeasor, a joint tortfeasor may seek an allocation of liability against the settling codefendant at trial. Any percentage of fault thus allocated "operates as a credit to the remaining defendants." In addition, the right of contribution assures that a joint tortfeasor can seek a remedy for the fault allocated to settling codefendants. It is plain that the equitable concerns underpinning Glassman do not exist in the joint tortfeasor context. Finally, the court is unpersuaded by defendant's argument that it would be unfair to allow plaintiff to disavow its prior position that Yang was negligent. Defendant bears the burden of proving Yang's negligence for purposes of an allocation. That plaintiff will not assist him in that endeavor does not evince any intent to manipulate or mislead the court; rather, the court finds it to be sound trial strategy. Given the remedies available to defendant, the court concludes it is unwarranted to invoke the extraordinary remedy of judicial estoppel as it is not "necessary to secure substantial equity." Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 365 (3d Cir. 1996) (quoting Gleason v. United States, 458 F.2d 171, 175 (3d Cir. 1972)). |
Appellate |