Recent Decisions of the New Jersey Appellate Courts
from 2024-06-16
to 2024-06-30
Docket No.: a2005-21redacted
Decided: 2024-06-26
Caption: ESTATE OF WILLIAM MASSI, ET AL. VS. BETTE BARR, ET AL.
Status: Published
Summary:
This Tort Claims Act case arises from a now-deceased plaintiffu0027s bicycle accident on a two-lane public road that straddled two municipalities.u0026nbsp; The accident occurred on a stretch of the road that was chronically pitted with potholes, apparently due to drainage and freezing problems.u0026nbsp; According to the deposition testimony of a local public safety director, potholes at that location had to be patched and re-patched u0022hundredsu0022 of times in the five years before the accident.u0026nbsp; Several citizens periodically reported the roadu0027s poor condition before the accident.u0026nbsp; The road had no full-sized shoulders or designated bike lanes./pPlaintiff swerved his bicycle to avoid a passing truck, and lost control and fell when his tires hit the potholes.u0026nbsp; Plaintiffu0027s engineering expert opines that incorrect methods had been used to patch the road.u0026nbsp; The expert further has opined that the persisting uneven surfaces were dangerous, not only for bicycles but also for motorcycles./pThis opinion clarifies and extends the principles of uPolzo v. County of Essex/u, 196 N.J. 569 (2008) (u0022uPolzo I/uu0022) and uPolzo v. County of Essex/u, 209 N.J. 51 (2012) (u0022uPolzo II/uu0022), concerning roadway surface conditions that endanger the safety of bicyclists on public roads.u0026nbsp; In a fact pattern involving a bicycle accident on a roadu0027s potholed shoulder, the Court held in uPolzo II/u that the public entity defendant had no duty to maintain the shoulder to an extent safe for bicyclists.u0026nbsp; uId./u at 70-75.u0026nbsp; The Court distinguished that no-duty-to-bicyclists situation from a roadway condition that also happens to be unsafe for motorized vehicles.u0026nbsp; uIbid./u/pThis court applies the rationale of uPolzo II/u here to this bicycle accident that occurred in a vehicular lane, and to a record with an unrebutted expert opinion that the road surface was unsafe for both motorcycles and bicycles.u0026nbsp; The court concludes a public entity that is palpably unreasonable in failing to correct such a known dangerous road condition may be liable to a bicyclist who is injured because of that danger.u0026nbsp; In doing so, the court recognizes that a plaintiff operating a two-wheeled vehicle must use due care when confronting a visibly hazardous potholed surface. u0026nbsp;These principles are consistent with New Jersey Department of Transportation regulations concerning the safety of roadway surfaces./pViewing this record in a light most favorable to plaintiff, the court vacates summary judgment in favor of the two municipal defendants that maintained and patched the road. u0026nbsp;In the unpublished portion of this opinion, the court addresses other discrete matters./p
Docket No.: a2767-21
Decided: 2024-06-25
Caption: ENGLEWOOD HOSPITAL u0026 MEDICAL CENTER, ET AL. VS. THE STATE OF NEW JERSEY, ET AL.
Status: Published
Summary:
Plaintiff hospitals brought action challenging the charity care program that requires them to provide care to all patients regardless of their ability to pay, while also prohibiting them from billing patients who qualify for charity care under the statute.u0026nbsp; The trial court dismissed certain hospitalsu0027 claims for failure to exhaust administrative remedies.u0026nbsp; As to the remaining claims, the trial court found that the regulations do not affect a constitutional taking under either a per se or uPenn Central/u analysis.u0026nbsp;/pOn de novo review, the court first addressed the ripeness issue.u0026nbsp; It held that plaintiffs raised facial challenges to charity care and therefore had properly raised their claims in the first instance with the trial court. u0026nbsp;Therefore, the court considered all plaintiff hospitalsu0027 constitutional takings claims. u0026nbsp;Next, the court held that plaintiffs failed to show either a per se or regulatory taking violative of the Fifth and Fourteenth Amendments of the United States Constitution as well as Article I, Paragraph 20 of the New Jersey Constitution.u0026nbsp; As a result, the court affirmed the trial courtu0027s order granting summary judgment on the merits, but did so on different grounds, entering summary judgment against all plaintiffs, including those previously dismissed for failure to exhaust administrative remedies.u0026nbsp; u0026nbsp;u0026nbsp;/p
Docket No.: a3177-22a3178-22
Decided: 2024-06-25
Caption: ESTATE OF DONVILLE CAMPBELL, ETC. VS. WOODCLIFF HEALTH u0026 REHABILITATION CENTER, ET AL.
Status: Published
Summary:
Plaintiffu0027s decedent succumbed to the COVID-19 virus in May 2020.u0026nbsp; The Estate claims the decedentu0027s death was a result of defendantsu0027 u0022negligent, grossly negligent, careless and reckless actions and omissionsu0022 in discharging his wife, from whom he allegedly contracted the disease, from defendant long-term care facility in April 2020, while the result of her PCR test was pending.u0026nbsp; Defendants notified the decedentu0027s wife, their patient, and the decedent of the patientu0027s positive test upon defendantsu0027 receipt of the result two days after her discharge.u0026nbsp; The decedent tested positive for the virus shortly thereafter.u0026nbsp; Defendantsu0027 patient survived her bout with the virus; the decedent tragically did not./pThe court reverses the denial of defendant health providersu0027 motions to dismiss plaintiffu0027s medical negligence, wrongful death and survival claim, finding, contrary to plaintiffu0027s assertion, that there is no well-established common law rule in New Jersey that a u0022physician has the duty to warn third persons against possible exposure to contagious or infectious diseases,u0022 and that plaintiff has not otherwise pled any recognizable derivative duty defendants owed to the decedent./pAlthough orders granting uRule/u 4:6-2 motions are ordinarily entered without prejudice, the Legislatureu0027s decision in the New Jersey COVID-19 Immunity Statute, uL./u 2020, uc./u 18, to temporarily limit the scope of whatever duty we might recognize defendants owed their patient and, derivatively, the decedent, to one of simply avoiding gross negligence during the height of the COVID-19 pandemic leaves plaintiff unable to state a claim on the facts alleged.u0026nbsp; It is not possible for a reasonable jury to find defendants were not simply negligent, but grossly negligent or reckless in discharging the decedentu0027s wife to his care in April 2020, before knowing the result of her pending PCR test./p
Docket No.: a0841-23
Decided: 2024-06-19
Caption: ROSALYN MUSKER VS. SUUCHI, INC., ET AL.
Status: Published
Summary:
This interlocutory appeal concerns the interpretation of the Wage Payment Law, N.J.S.A. 34:11-4.1 to -4.14, and its application to a defendant employeru0027s commission structure. u0026nbsp;The motion judge ruled the plaintiff employeeu0027s commissions in dispute stemming from the sale of Personal Protection Equipment (u0022PPEu0022) during the onset of the COVID-19 pandemic were not u0022wagesu0022 covered by the statute and instead fell within the statuteu0027s exception for u0022supplementary incentives.u0022 u0026nbsp;Plaintiff had sought payment of more than $1.3 million in commissions claimed on over $32 million in PPE sales that she helped generate in the three-month period from March 2020 through June 2020./pThe Supreme Court granted the employeeu0027s motion for leave to appeal, remanding the case to this court u0022for consideration on the merits, limited to whether the commission structure at issue falls within the Wage Payment Law.u0022/pUnder the circumstances presented, the compensation the employee sought for the PPE sales are u0022supplementary incentivesu0022 excluded by N.J.S.A. 34:11-4.1(c), and not regular commissions within the ordinary scope of her sales compensation plan. u0026nbsp;The employeru0027s commitment to pay commissions on PPE sales was outside of plaintiffu0027s customary role in selling the companyu0027s services and were designed to stimulate the sales of PPE during a time of sudden pandemic-related demand./pThe court therefore affirms the motion judgeu0027s ruling, but, as the judge recognized, subject to plaintiffu0027s non-statutory contractual claims./p
Docket No.: a0047-22a0048-22a2073-22
Decided: 2024-06-26
Caption: DCPP VS. J.B. AND C.R., IN THE MATTER OF C.D.R., ET AL.
Status: Unpublished
Summary:
PER CURIAM
These back-to-back appeals, which we consolidate for purposes of this
opinion, involve C.D.R. "Callie",1 born in April 2021 to appellants J.B.
"Juliet" and C.R./C.D.R. "Carter". In A-0047-22 and A-0048-22, Juliet and
Carter each appeal from the Family Part's September 14, 2021 determination
they abused or neglected Callie in violation of N.J.S.A. 9:6-8.21c. The matters
were perfected for appeal by an order entered on July 25, 2022, terminating the
litigation. In A-2073-22, Juliet appeals from the termination of her parental
rights. Carter voluntarily surrendered his parental rights to Callie and therefore
does not participate in A-2073-22. Both the Division of Child Protection and
Permanency "Division" and the Law Guardian urge us to reject defendants'
arguments and affirm the judge's decisions. We affirm in all three matters.
Docket No.: a0083-22
Decided: 2024-06-26
Caption: DAVID ENGLANDER VS. ACADEMY BUS, ET AL.
Status: Unpublished
Summary:
PER CURIAM
In this Title 59 action, plaintiff David Englander appeals from a jury
verdict in favor of the New Jersey Turnpike Authority finding he failed to
establish the concrete bus shelter pad from which he fell and injured his wrist
was in a dangerous condition. The Turnpike Authority cross-appeals from the
denial of its summary judgment motion, asserting it should have prevailed on
the issue of palpable unreasonableness. We agree with the Authority it was
entitled to summary judgment. We thus reverse the decision on the cross-
appeal and remand for the entry of summary judgment in favor of the Turnpike
Authority and dismiss plaintiff's appeal from the jury verdict as moot.
Docket No.: a0730-22
Decided: 2024-06-26
Caption: STATE OF NEW JERSEY VS. MARK W. HARPER
Status: Unpublished
Summary:
PER CURIAM
Defendant Mark Harper appeals from his October 25, 2022 judgment of
conviction JOC, after a jury found him guilty of second-degree endangering
the welfare of a child in his legal care, N.J.S.A. 2C:24-4a2. We affirm.
Docket No.: a2005-21
Decided: 2024-06-26
Caption: ESTATE OF WILLIAM MASSI, ET AL. VS. BETTE BARR, ET AL.
Status: Unpublished
Summary:
SABATINO, P.J.A.D.
Bicycle riding has become increasingly prevalent on our public roadways.
That increased usage has heightened safety concerns about the condition of
roadway surfaces used by bicyclists as well as motor vehicles. Since the 1990s,
the New Jersey Department of Transportation "DOT" has published guidelines
for the safe condition of road surfaces used by both bicycles and motor vehicles.
Docket No.: a2849-21
Decided: 2024-06-26
Caption: DCPP VS. J.N.B. AND C.D.R., IN THE MATTER OF THE GUARDIANSHIP OF C.N.-V.R. AND C.D.R.
Status: Unpublished
Summary:
PER CURIAM
Defendant J.N.B. "Juliet" appeals the Family Part's April 28, 2022 final
judgment terminating her parental rights to her biological children , C.N.-V.R.
"Clara" and C.D.R. "Calvin", who were born of her relationship with C.R.
"Carter".1 Carter withdrew his notice of appeal and does not take part. We
affirm.
Docket No.: a3067-22
Decided: 2024-06-26
Caption: TAHEERAH SCRUGGS VS. WENTWORTH GRAYMAN
Status: Unpublished
Summary:
PER CURIAM
In this one-sided appeal, defendant Wentworth Grayman appeals from the
Family Part's May 25, 2023 order denying reconsideration of its March 8, 2023
order granting plaintiff Taheerah Scruggs's motion to modify the parties'
parenting time agreement to permit a third party to pick up the child. We affirm.
The parties have a child together, born in August 2019. On plaintiff's
application, the court established defendant's paternity and entered a custody
and child support order on June 4, 2020. The resulting Uniform Summary
Support Order USSO set forth a detailed parenting time schedule, with
"[e]xchange times and locations to be consistent with past practices," but did not
indicate what those past practices were.
Docket No.: a3234-22
Decided: 2024-06-26
Caption: STATE OF NEW JERSEY VS. BRANDON D. WILLIAMS
Status: Unpublished
Summary:
PER CURIAM
Defendant Brandon D. Williams' motion to suppress evidence obtained
during a consensual search of his car was denied by the motion court. Defendant
subsequently pled guilty to unlawful possession of a handgun. After reviewing
the record, we conclude that, despite having probable cause to stop defendant's
car due to motor vehicle violations, the police did not have reasonable
articulable suspicion that defendant committed a crime to justify a request to
search his vehicle under State v. Carty, 170 N.J. 632 2002. We therefore
reverse the denial of defendant's suppression motion, vacate his conviction and
sentence, and remand for further proceedings consistent with this opinion.
Docket No.: a3796-21
Decided: 2024-06-26
Caption: E.K. VS. B.S.
Status: Unpublished
Summary:
PER CURIAM
In this non-dissolution matter, defendant-mother B.S.1 appeals from a
June 28, 2022 Family Part order awarding her and plaintiff-father, E.K., joint
legal and physical custody of their infant daughter, Eden, following a plenary
hearing. Defendant contends the court erred by failing to properly engage in a
best interests analysis under N.J.S.A. 9:2-4c include a statement of reasons for
its decision, and by improperly executing plaintiff's proposed form of order,
which was materially different from the court's oral decision. We disagree and
affirm.
Docket No.: a3978-21
Decided: 2024-06-26
Caption: STATE OF NEW JERSEY VS. CORTNEY L. PARNELL
Status: Unpublished
Summary:
PER CURIAM
Defendant Cortney L. Parnell appeals from the April 16, 2021 order
denying his motion to withdraw his guilty plea and January 19, 2022 judgment
of conviction. Defendant, represented by counsel assigned by the Office of the
Public Defender "OPD" in the trial court and on appeal, contends he was
denied the opportunity to establish he was entitled to a change of assigned trial
counsel based on an alleged conflict of interest. Because the trial court did not
consider defendant's claim of substantial cause to change assigned counsel, we
are constrained based on the specific facts and circumstances of this case to
remand for an evidentiary hearing on that issue.
Docket No.: a0097-23
Decided: 2024-06-25
Caption: DEMETRIS ARRINGTON VS. BOARD OF REVIEW, ET AL.
Status: Unpublished
Summary:
PER CURIAM
Appellant Demetris Arrington appeals from a July 26, 2023 final agency
decision by the Board of Review, Department of Labor the Board, dismissing
her appeal of a September 20, 2021 decision by an appeal tribunal. We affirm.
Docket No.: a0347-22
Decided: 2024-06-25
Caption: STATE OF NEW JERSEY VS. N.J.E.
Status: Unpublished
Summary:
PER CURIAM
Defendant N.J.E. appeals from a July 27, 2022 order denying his first
petition for post-conviction relief PCR asserting ineffective assistance of his
trial counsel. For the reasons that follow, we affirm for substantially the same
reasons set forth by the PCR court.
Docket No.: a0473-22
Decided: 2024-06-25
Caption: GETTY PROPERTIES CORP. VS. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, ET AL.
Status: Unpublished
Summary:
PER CURIAM
This insurance coverage dispute returns to us following a remand ordered
in our previous opinion. Getty Props. Corp. v. St. Paul Fire Marine Ins. Co.,
No. A-0182-19 App. Div. Dec. 30, 2021. The crux of the dispute is two
competing coverage actions filed in New York and this state several years after
environmental agencies in Maryland, Pennsylvania, and New Jersey instituted
lawsuits against plaintiff Getty Properties Corp. and numerous petroleum
companies for remediation of groundwater contamination caused by a gasoline
additive collectively, the three remediation actions. Getty, in turn, sought
defense and coverage from several insurers, including defendants National
Union Fire Insurance Company of Pittsburg, Pa. AIG, and St. Paul's Fire and
Marine Insurance Company Travelers collectively, insurers. 1
Docket No.: a1014-22
Decided: 2024-06-25
Caption: STATE OF NEW JERSEY VS. MARCUS K. FLETCHER
Status: Unpublished
Summary:
PER CURIAM
After losing his motion to suppress evidence seized without a warrant,
defendant Marcus Fletcher entered a negotiated guilty plea to second-degree
possession of a controlled dangerous substance CDS with intent to distribute,
N.J.S.A. 2C:35-5a1 and b2, and second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5b. He was sentenced in accordance with the plea
agreement to an aggregate term of forty-two months in prison, with a forty-two-
month parole disqualifier in accordance with the Graves Act, N.J.S.A. 2C:43-6.
Docket No.: a1241-22
Decided: 2024-06-25
Caption: JOSEPH GOODE VS. GREGORY VANEK, ET AL.
Status: Unpublished
Summary:
PER CURIAM
This appeal stems from a personal injury case that was tried in person
during the COVID-19 pandemic before a jury in 2022. The pertinent
background is as follows.
Docket No.: a1326-23
Decided: 2024-06-25
Caption: ZUMAR MUHAMMAD VS. CITY OF JERSEY CITY, ET AL.
Status: Unpublished
Summary:
PER CURIAM
Plaintiff Zumar Muhammad appeals from the trial court's October 6, 2023,
order granting in part his motion to reinstate his complaint as to certain
defendants: Hudson County Prosecutor's Office, the State of New Jersey,
Prosecutor Ester Suarez, Prosecutor William Bailey, and New Jersey Attorney
General Gurbir Grewal State defendants. Muhammad argues the court errored
when it declined to reinstate the complaint as to the remaining defendants:
Jersey City, K. Wendowkowski, A. Paulino, E. Matute, K. Armstrong, and M.
Alvaro City defendants.
Docket No.: a1576-23
Decided: 2024-06-25
Caption: STRATEGIC DEVELOPMENT GROUP, LLC VS. NEW JERSEY CITY UNIVERSITY
Status: Unpublished
Summary:
PER CURIAM
Defendant New Jersey City University the University, on leave
granted, appeals from a December 19, 2023 order denying its motion to dismiss
plaintiff's, Strategic Development Group, LLC Strategic, complaint for failure
to state a claim upon which relief could be granted under Rule 4:6-2e. We
vacate the part of the order denying Strategic's request to dismiss the breach of
contract and unjust enrichment claims, and remand for the trial court to dismiss
those claims. In addition, because the judge failed to explain his reasons for
denying Strategic's claim—for lack of notice regarding the fraudulent
misrepresentation—we remand that issue for further proceedings consistent with
this opinion.
Docket No.: a2016-22
Decided: 2024-06-25
Caption: DCPP VS. A.A., T.D., AND L.G., IN THE MATTER OF X.D. AND A.G.
Status: Unpublished
Summary:
PER CURIAM
Defendant A.A.1 appeals from a March 2, 2022 Family Part order finding
she committed abuse or neglect of her then fourteen-year-old child, A.G. 2 A.G.
has a history of engaging in self-harming behavior, including a suicide attempt
in December 2020. Around February 2021, A.G. told defendant that they were
sexually abused when they were eight years old by defendant's live-in boyfriend,
T.D., and others. Defendant did not report the claimed sexual abuse to police,
the Division of Child Protection and Permanency DCPP or Division, or A.G.'s
therapist. In March 2021, A.G. disclosed the past sexual abuse to their therapist.
DCPP was notified and initiated an investigation. Defendant then relocated
A.G. to the grandparents' residence on the first floor of the house, allowing T.D.
to remain in the third-floor residence.
Docket No.: a2845-22a2846-22a3771-22
Decided: 2024-06-25
Caption: FPS RINK, LP, ETC. VS. TWIN CITY FIRE INSURANCE COMPANY, ET AL.
Status: Unpublished
Summary:
PER CURIAM
These consolidated appeals arise out of insurance coverage disputes
concerning whether the insurers are required to defend and indemnify the
insureds in an underlying workplace personal injury action. One insurer filed a
declaratory judgment action in Pennsylvania and, shortly thereafter, an insured
filed an action in New Jersey against four other insurers. Eventually, all five of
the insurers involved in these appeals were added to the New Jersey action, and
four were added to the Pennsylvania action. So, the issue on these appeals is
whether the New Jersey court should dismiss or stay its action and allow the
Pennsylvania court to address the insurance coverage disputes on grounds of
comity and the first-filed rule.
Docket No.: a2862-22
Decided: 2024-06-25
Caption: IN THE MATTER OF JAMES DAVIS, HILLSIDE TOWNSHIP POLICE DEPARTMENT
Status: Unpublished
Summary:
PER CURIAM
Petitioner James Davis appeals from an April 12, 2023 Civil Service
Commission decision, upholding his termination by the Township of Hillside.
Davis argues the Commission's dismissal of his appeal as untimely was improper
because his appeal was filed within a reasonable time after receiving notice of
the charges against him. We disagree and affirm.
Docket No.: a2971-22
Decided: 2024-06-25
Caption: S.H. VS. E.H.
Status: Unpublished
Summary:
PER CURIAM
Plaintiff commenced this action pursuant to the Prevention of Domestic
Violence Act, N.J.S.A. 2C:25-17 to -35 PDVA, based on allegations that
defendant, her estranged husband, committed the predicate acts of burglary,
harassment, stalking, and trespass. Her recent complaint followed two earlier
actions wherein the court granted her temporary restraining orders TROs,
which she ultimately dismissed in lieu of two orders granting the parties' civil
restraints. As relevant here, one of those orders granted defendant "sole and
exclusive use and possession" of the parties' beach house in Seaside Heights and
plaintiff "sole and exclusive use and possession" of the parties' former marital
residence in Somerset. Each party was prohibited from returning to the property
awarded the other absent written consent.
Docket No.: a2991-22
Decided: 2024-06-25
Caption: IN THE MATTER OF THE APPEAL OF THE DENIAL OF ALFRED L. ESPOSITO JR.u0027S APPLICATION, ETC.
Status: Unpublished
Summary:
PER CURIAM
Alfred L. Esposito, Jr., appeals from a May 31, 2023 order denying his
application for a firearms purchaser identification card FPIC and permit to
purchase a handgun. We affirm.
Docket No.: a3075-22
Decided: 2024-06-25
Caption: LARRY MILES VS. NEW JERSEY STATE PAROLE BOARD
Status: Unpublished
Summary:
PER CURIAM
Appellant Larry R. Miles appeals from the April 26, 2023 decision of the
New Jersey State Parole Board Board revoking his Parole Supervision for Life1
PSL status and imposing an eighteen-month term of incarceration. We affirm.
On May 19, 2013, Miles was arrested and charged with attempted sexual
assault and criminal sexual contact. He was "riding on a bus with mentally
challenged individuals[ and he] inappropriately touched a female passenger in a
sexual manner." Miles pleaded guilty to an amended charge of aggravated criminal
sexual contact, N.J.S.A. 2C:14-3a, and was sentenced to a suspended custodial
term of three years and to PSL.
Docket No.: a3114-22
Decided: 2024-06-25
Caption: PAUL J. TEMBY, ETC. VS. NICHOLAS PRIVITERA
Status: Unpublished
Summary:
PER CURIAM
While walking across State Highway 31 in Hampton Township, Tara
Florence Temby was struck and killed by an automobile driven by defendant
Nicholas Privitera. The accident occurred after sunset in early October 2022.
At the time of her death, Tara was forty-six years old and single with two boys,
whom we call "Patrick," age eighteen, and "Donald," age nine.
Docket No.: a3266-22
Decided: 2024-06-25
Caption: IN THE MATTER OF THE LICENSE OF RAYMOND D. REITER, M.D., ETC.
Status: Unpublished
Summary:
PER CURIAM
This appeal arises out of a 2023 decision by the New Jersey State Board
of Medical Examiners the Board not to renew the medical license of appellant
Raymond D. Reiter. In 2022, the Legislature enacted a statute prohibiting any
state board from issuing or renewing a license to a healthcare professional if the
applicant had been convicted of certain crimes, including sexual assault and
criminal sexual contact. N.J.S.A. 45:1-15.9.
Docket No.: a3351-22
Decided: 2024-06-25
Caption: TOWNSHIP OF HAMILTON VS. PBA LOCAL 66, ET AL.
Status: Unpublished
Summary:
PER CURIAM
Plaintiff Township of Hamilton appeals from the Law Division's June 1,
2023 order denying its application for an order to show cause that sought to
vacate the November 8, 2022 arbitrator's award in favor of defendants PBA
Local 66 and PBA Local 66A. We affirm.
Docket No.: a3586-21
Decided: 2024-06-25
Caption: IN THE MATTER OF THE CERTIFICATES OF NICHOLAS CILENTO, ETC.
Status: Unpublished
Summary:
PER CURIAM
Appellant Nicholas Cilento, a tenured teacher, appeals from a final
decision of the Acting Commissioner of Education, imposing a two-year
suspension of his teaching certificate. He asks in this appeal the same question
posed by the appellant in Morison v. Willingboro Board of Education, 478 N.J.
Super. 229, 234 App. Div. 2024: does "a tenure arbitrator's determination of
discipline through the procedures set forth in N.J.S.A. 18A:6-17.1 prevent[] the
State Board of Examiners and Commissioner from imposing a more severe
sanction of suspending or revoking the licensee's certificate to teach within this
State, under the procedures set forth in N.J.S.A. 18A:6-38 to -39"? In Morison,
we answered that question in the negative, holding:
The statewide teacher certificate revocation process
authorized in N.J.S.A. 18A:6-38 and -39 operates
separately from the teacher tenure arbitration process
under N.J.S.A. 18A:6-17.1. The manifest legislative
intent is for the two statutes to be administered
independently of one another. The proceedings involve
nonidentical parties, and also different stakes,
procedures, and the avenues and standards of appellate
review.
[Id. at 235.]
Following Morison, we affirm the Commissioner's decision in this case.
Docket No.: a3608-22
Decided: 2024-06-25
Caption: F.H.R. VS. A.N.
Status: Unpublished
Summary:
PER CURIAM
Defendant A.N.1 appeals from a June 29, 2023 final restraining order
FRO entered against him in favor of plaintiff F.H.R. pursuant to the Prevention
of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We affirm.
Docket No.: a1446-22
Decided: 2024-06-20
Caption: ROBERT DAVIS VS. STATE OF NEW JERSEY, ET AL.
Status: Unpublished
Summary:
PER CURIAM
On May 6, 2022, plaintiff Robert Davis filed a Law Division complaint
against defendants State of New Jersey, Northern State Prison, New Jersey
Department of Corrections NJDOC, and NJDOC Lieutenant Douglas Stark,
alleging causes of action for assault and battery and violations of the New Jersey
Law Against Discrimination NJLAD, N.J.S.A. 10:5-1 to -50. Plaintiff appeals
from an order granting defendants' motions to dismiss the complaint under Rule
4:6-2e on statute-of-limitations grounds. We affirm.
Docket No.: a1674-22
Decided: 2024-06-20
Caption: IN THE MATTER OF THE ESTATE OF MARIA IANNACCO, DECEASED
Status: Unpublished
Summary:
PER CURIAM
In this probate case, a son challenges the validity of his mother's last will
and testament. Plaintiff Francesco Iannacco filed an action contending the 2020
will of his mother, Maria Iannacco, was the product of undue influence by
defendant Aldo Iannacco, Jr., Maria's other son whom she named as the executor
of her estate and as a beneficiary, and Bianca M. Martinelli, Aldo Jr.'s daughter,
also a beneficiary named in the will.1 Following a bench trial, the trial court
entered judgment in favor of defendants and dismissed plaintiff's complaint with
prejudice.
Docket No.: a2581-22
Decided: 2024-06-20
Caption: STATE OF NEW JERSEY VS. STEVEN KADONSKY
Status: Unpublished
Summary:
PER CURIAM
Defendant Steven Kadonsky appeals a March 6, 2023 Law Division order
entered by Judge Julie M. Marino denying his third petition for post -conviction
relief PCR. Between 1993 and 1995, defendant pled guilty to charges relating
to the large-scale distribution of marijuana, including Leader of a Narcotics
Trafficking Network Leader offense, N.J.S.A. 2C:35-3. He was sentenced on
the Leader conviction to life imprisonment with a twenty-five-year period of
parole ineligibility.1 He contends it is fundamentally unfair to continue to
punish him for that first-degree crime in light of recent marijuana reforms
codified in the New Jersey Cannabis Regulatory, Enforcement Assistance, and
Marketplace Modernization Act CREAMMA, N.J.S.A. 24:6I-31 to -56, and
implemented in the Attorney General Law Enforcement Directive Governing
Dismissal of Certain Pending Marijuana Charges No. 2021-1 Directive. After
carefully reviewing the record in light of the governing legal principles, we
affirm substantially for the reasons explained in Judge Marino's cogent sixteen -
page written opinion.
Docket No.: a2977-22
Decided: 2024-06-20
Caption: JEFFREY M. ZIEMBA VS. STATE HEALTH BENEFITS COMMISSION
Status: Unpublished
Summary:
PER CURIAM
Petitioner appeals from the May 10, 2023 final decision of the State Health
Benefits Commission denying his challenge to benefits coverage for two
medical procedures he underwent for back pain. We affirm for the following
reasons.
Docket No.: a3180-22
Decided: 2024-06-20
Caption: MARY ANN MUNRO, ET AL. VS. KATHERINE PEPE
Status: Unpublished
Summary:
PER CURIAM
Plaintiffs Mary Ann Munro and Matthew Munro appeal from the
Chancery court's May 12, 2023 order granting summary judgment in favor of
defendant Katherine Pepe.1 Based on our review of the record and the applicable
legal principles, we vacate and remand for trial.
Docket No.: a0609-22
Decided: 2024-06-18
Caption: STATE OF NEW JERSEY VS. ROGER HOWARD
Status: Unpublished
Summary:
PER CURIAM
Defendant Roger Howard appeals from a September 2, 2022 order
denying his petition for post-conviction relief PCR following an evidentiary
hearing. We affirm.
Docket No.: a0943-22
Decided: 2024-06-18
Caption: TOWNSHIP OF DEPTFORD VS. MALACHITE GROUP, LTD., ET AL.
Status: Unpublished
Summary:
PER CURIAM
Alleging a violation of § 106.4 of its municipal code, the Township of
Deptford sought to fine defendants Deptford Commons, LLC and Malachite
Group, Ltd., a total of 1,013,750—a rate of 1,250 "each day" for 811 days
between November 7, 2019 and February 11, 2021 the violation period—due
to defendants' failure to remove rubbish and garbage at 1800 Clements Bridge
Road, Deptford Township the property. Defendants contested the fine amount.
After trial, the municipal court reduced the daily fine rate to 500, equating to
total fines of 405,500 over the violation period. Defendants' reconsideration
motion to reduce or suspend the fines was denied.
Docket No.: a0985-22
Decided: 2024-06-18
Caption: ELIZABETH GAYDEN VS. KEAN UNIVERSITY, ET AL.
Status: Unpublished
Summary:
PER CURIAM
Plaintiff Elizabeth Gayden appeals from an August 29, 2022 order
granting summary judgment to defendants Kean University the University,
Lauren Mastrobuno, Paula Abioli, and Jonathan Merchantini 1 and dismissing
her complaint with prejudice. For the reasons that follow, we affirm.
Docket No.: a1214-22
Decided: 2024-06-18
Caption: HOWARD SLUPSKI VS. STEPHANIE M. KAY
Status: Unpublished
Summary:
PER CURIAM
A-1214-22
Plaintiff Howard Slupski Howard filed an action in the chancery court,
probate part, seeking to be appointed as the guardian for his then-101-year-old
mother, Edith Slupski Edith. 1 The probate court appointed defendant
Stephanie Kay Kay as attorney for Edith in the guardianship proceeding.
Docket No.: a2240-22
Decided: 2024-06-18
Caption: EDDIE DURHAM VS. TOWNSHIP OF EDISON, ET AL.
Status: Unpublished
Summary:
PER CURIAM
Plaintiff Eddie Durham appeals a February 17, 2023 Law Division order
granting defendants Township of Edison, Detective Charles Zundel, and
Patrolman Alan Sciarillo, Jr.'s motion for summary judgment and dismissing his
malicious prosecution complaint. We affirm.
Docket No.: a2391-22
Decided: 2024-06-18
Caption: SERGIO LOPEZ VS. MARMIC LLC, ET AL.
Status: Unpublished
Summary:
PER CURIAM
Plaintiff Sergio Lopez appeals from a March 7, 2023 order dismissing his
complaint seeking unpaid wages under the New Jersey Wage and Hour Law
WHL, N.J.S.A. 34:11-56a to -56a41, and New Jersey Wage and Payment
Law WPL, N.J.S.A. 34:1-4.1 to 4.15, following a bench trial. The trial judge
found plaintiff knowingly provided a false Social Security number on a W -4
form to obtain part-time employment with defendants Marmic LLC Marmic
and Mike Ruane as a superintendent and was barred from recovering any
economic damages for unpaid wages under the WHL and the federal
Immigration Reform and Control Act of 1986 IRCA, 8 U.S.C. §§ 1101 to 1507,
because he was an undocumented non-citizen who did not have a valid Social
Security number and could not produce a valid W-4 form. The trial judge also
found plaintiff did not sustain his burden of proof on the issue of back pay. We
affirm.
Docket No.: a2643-22
Decided: 2024-06-18
Caption: STATE OF NEW JERSEY VS. GARY JONES
Status: Unpublished
Summary:
PER CURIAM
Defendant Gary Jones appeals from the May 3, 2023 order of the Law
Division denying his petition for post-conviction relief PCR after an
evidentiary hearing. We affirm.
Docket No.: a2664-22
Decided: 2024-06-18
Caption: STATE OF NEW JERSEY VS. WALTER TOWNSEND
Status: Unpublished
Summary:
PER CURIAM
Defendant Walter Townsend is serving a life sentence in prison, with
twenty-five years of parole ineligibility, for murdering his girlfriend Norma
Williams in 1981. We consider defendant's appeal of a March 31, 2023 order
denying his motion to correct an illegal sentence. After careful review of
defendant's arguments, we affirm substantially for the reasons set forth in Judge
J. Adam Hughes's well-reasoned written statement of reasons accompanying the
March 31, 2023 order.
Docket No.: a3244-21
Decided: 2024-06-18
Caption: JOSE VELEZ VS. NEW JERSEY DEPARTMENT OF CORRECTIONS
Status: Unpublished
Summary:
PER CURIAM
On January 3, 2022, a corrections officer witnessed a fight in the mess
hall at South Woods State Prison between inmates Jose Velez and Robert Decree
causing them to be restrained. Relevantly, Velez was charged with prohibited
act .002, assault, N.J.A.C. 10A:4-4.1a1ii. The disciplinary hearing officer
found Velez––who declined the opportunity to testify––guilty of the charge
based upon first-hand special custody reports and a video of the incident
evidencing that Velez swung open a pantry door in the mess hall to strike Decree
in the arm. Velez was sanctioned to sixty days in the restorative housing unit,
thirty days loss of commutation time, and fifteen days loss of recreation,
television, radio, and media tablet privileges.
Docket No.: a3491-21
Decided: 2024-06-18
Caption: STATE OF NEW JERSEY VS. KEMAL ALBUT
Status: Unpublished
Summary:
PER CURIAM
Defendant, Kemal Albut, appeals from a June 29, 2017 order denying his
petition for post-conviction relief PCR without an evidentiary hearing.
Because defendant failed to establish a prima facie showing of ineffective
assistance of counsel, we affirm.
Docket No.: a0130-22
Decided: 2024-06-17
Caption: SILVESTRE PALACIO DURAN, ET AL. VS. MINA LE, M.D., ET AL.
Status: Unpublished
Summary:
PER CURIAM
In July 2019, defendant Dr. Mina Le, a medical doctor with a specialty in
otolaryngology, treated and performed surgery on Francisca Cisnernos Perez
Palacio decedent. Decedent died on July 16, 2019. In July 2021, decedent's
husband, Silvestre Palacio Duran plaintiff, as administrator of decedent's
estate and in his individual capacity, sued several defendants, including Dr. Le ,
alleging medical malpractice.
Docket No.: a0407-23
Decided: 2024-06-17
Caption: GEORGINA C. SANDOVAL, ET AL. VS. MIDLAND FUNDING, LLC, ET AL.
Status: Unpublished
Summary:
PER CURIAM
By leave granted, plaintiffs appeal from a June 9, 2023 order of dismissal
of their class-action claim. Plaintiffs sought relief for violations of the Fair Debt
Collections Practices Act FDCPA, 15 U.S.C. §§ 1692-1692p, on behalf of
the named plaintiffs and a putative class who had been sent debt-collection form
letters about potential consequences of defaulting on their debt by defendants
Midland Funding, LLC and Midland Credit Management, Inc. Plaintiffs also
appeal from an August 4, 2023 order denying their motion for reconsideration.
Plaintiffs first alleged violations of the FDPCA in a complaint filed in
federal court. The federal court initially denied plaintiffs' request for class
certification and later dismissed plaintiffs' case based on a determination the
court lacked subject-matter jurisdiction because the individual plaintiffs lacked
standing.
Docket No.: a0467-22
Decided: 2024-06-17
Caption: EDWARD FARLEY AIZEN VS. NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, ET AL.
Status: Unpublished
Summary:
PER CURIAM
Edward Aizen, self-represented, appeals from the August 30, 2022 final
agency decision FAD of the Government Records Council GRC denying
his request for disclosure of records pursuant to the Open Public Records Act
OPRA, N.J.S.A. 47:1A-1 to -13. Having considered the parties' arguments in
light of the record and applicable legal principles, we affirm.
Docket No.: a0477-22
Decided: 2024-06-17
Caption: JOSEPH URIATE VS. NEW JERSEY STATE PAROLE BOARD
Status: Unpublished
Summary:
PER CURIAM
Joseph Uriarte appeals from an August 31, 2022 New Jersey State Parole
Board Board final agency decision revoking his parole and directing that he
serve a sixteen-month custodial term for violating the conditions of his special
sentence of parole supervision for life PSL. Unpersuaded by Uriarte's claims
the Board based its findings on unreliable evidence, failed to give sufficient
weight to relevant factors, and ignored that revocation of his parole did not serve
societal interests, we affirm.
Docket No.: a0571-23
Decided: 2024-06-17
Caption: C.A.L. AND C.T. VS. STATE OF NEW JERSEY, ET AL.
Status: Unpublished
Summary:
PER CURIAM
Plaintiffs C.A.L. and C.T., a married couple, appeal the September 12,
2023 Law Division order dismissing their civil complaint for damages with
prejudice for failure to state a claim as barred by the applicable statutes of
limitations. C.A.L. was sentenced to parole supervision for life PSL
pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -23, following a 2005 conviction
for endangering the welfare of a child when she and her then-boyfriend, both
adults, engaged in sexual acts with a fourteen-year-old girl.
Docket No.: a1400-22
Decided: 2024-06-17
Caption: HIGHVIEW TERRACE APARTMENTS VS. ASSEM ABULKHAIR
Status: Unpublished
Summary:
PER CURIAM
Defendant Assem Abulkhair appeals from a December 20, 2022 order
denying his motion for reconsideration. Defendant moved for reconsideration
of an October 3, 2022 order authorizing the issuance of a warrant of removal in
favor of plaintiff Highview Terrace Apartments. For the reasons that follow, we
affirm.
Docket No.: a1830-21
Decided: 2024-06-17
Caption: STATE OF NEW JERSEY VS. DEMARCUS DREW
Status: Unpublished
Summary:
PER CURIAM
Defendant Demarcus Drew appeals from the December 1, 2019 order
denying his petition for post-conviction relief PCR without an evidentiary
hearing. We affirm.
Docket No.: a2136-22
Decided: 2024-06-17
Caption: STATE OF NEW JERSEY VS. JESUS A. ARAIZA-AVILA
Status: Unpublished
Summary:
PER CURIAM
A jury convicted defendant Jesus A. Araiza-Avila of murder and
aggravated assault for the 2007 shooting death of the boyfriend of his child's
mother and shooting the child's mother in the ankle. In 2009, defendant was
sentenced to a thirty-year prison term with a thirty-year parole disqualifier on
the murder conviction and a consecutive five-year prison term on the aggravated
assault conviction, subject to the No Early Release Act NERA, N.J.S.A.
2C:43-7.2. We affirmed defendant's convictions in an unpublished opinion.
State v. Araiza-Nava-Avila, No. A-3621-09 App. Div. Apr. 13, 2012. We also
affirmed the court's denial of defendant's ensuing post-conviction relief PCR
petition, State v. Araiza-Avila, No. A-3184-13 App. Div. June 23, 2015, and a
federal court denied his petition for a writ of habeas corpus, Araiza-Avila v.
Warden of N.J. State Prison, No. 15-4003, 2019 U.S. Dist. LEXIS 48627 D.N.J.
Mar. 25, 2019. Defendant did not challenge his sentence on direct appeal or
collateral attack.
Docket No.: a2739-22
Decided: 2024-06-17
Caption: STATE OF NEW JERSEY VS. CHARLES F. SAWYER
Status: Unpublished
Summary:
PER CURIAM
Defendant appeals from a December 22, 2022 order, denying his post-
conviction relief PCR petition without a hearing. Defendant claimed his trial
counsel rendered ineffective assistance for failure to timely advise him of the
State's plea offer. The State having withdrawn the offer before defendant
accepted it, defendant proceeded to trial and was convicted of murder, felony
murder, kidnapping, burglary, and related weapons offenses for the 2012
shooting death of his ex-wife. He was sentenced to an aggregate prison term of
sixty-one years, subject to the No Early Release Act NERA, N.J.S.A. 2C:43-
7.2. The State's plea offer limited defendant's sentencing exposure to an
aggregate prison term of twenty-three years, subject to NERA.
On appeal, defendant raises a single argument for our consideration:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
FOR NOT TIMELY INFORMING HIM OF THE
STATE'S PLEA OFFER, WHICH HE WOULD HAVE
ACCEPTED.
Guided by well-settled principles, we reject these contentions and affirm.
Docket No.: a3136-22
Decided: 2024-06-17
Caption: STATE OF NEW JERSEY VS. MICHAEL T. CONNER-WHITE
Status: Unpublished
Summary:
PER CURIAM
Following the denial of his motion to suppress evidence and statements
made to law enforcement officers, defendant Michael Conner-White pled
guilty to second-degree possession of a handgun without a permit, N.J.S.A.
2C:39-5b1. On June 15, 2023, defendant was sentenced to a five-year term
of incarceration, with one year of parole ineligibility, pursuant to the terms of
the plea agreement.
Docket No.: 06926-22
Decided: 2024-06-27
Caption: GREGORY GRISHAYEV, MICHAEL TOLMACH AND EONSMOKE, LLC, V DIRECTOR, DIVISION OF TAXATION
Summary:
CIMINO, J.T.C.
Plaintiff, Eonsmoke, LLC, is a distributor of liquid nicotine. The Director
initiated an audit. New Jersey assesses a ten cents per milliliter tax on the in-state
sale or use of liquid nicotine used in prefilled electronic cigarette cartridges and
disposable devices. After receiving notification from the United States Food and
Drug Administration FDA that it could no longer sell its products, Eonsmoke
asserts it transferred 4.26 million milliliters of product to a waste hauler for
destruction. With disputed issues of fact, a trial is required.
Docket No.: 002975-2018
Decided: 2024-06-19
Caption: Twin Lakes Realty, LLC v. Township of Aberdeen
Summary:
This opinion decides plaintiff's summary judgment motion and defendant's similar cross-
motion. Plaintiff asks the court to find that the assessment of 18,670,700 imposed on the above-
referenced property Subject for tax year 2018 be declared an unconstitutional spot assessment.
This is because, plaintiff argues, the assessment increased by over 100 from the prior tax year
and 1 the magnitude of the increase was solely due to sale of the Subject, an apartment complex,
on November 29, 2016, for 26,960,000; 2 the assessment changes for tax year 2018 to the other
apartment complexes in defendant taxing district were only between 2 to 20; and 3
defendant's assessor had no independent basis or new information to justify the magnitude of
increase to the Subject's 2018 assessment. Plaintiff seeks an Order restoring the Subject's 2018
assessment to the 2017 assessment amount of 9,029,400.
Docket No.: chepusavjustwoodpallets
Decided: 2024-06-19
Caption: Chep USA v. Just Wood Pallets
Status: Unpublished
Summary:
This matter comes before the Court on application of the Defendant, Just Wood Pallets,
INC.'s Motion to Dismiss the Plaintiff's Amended Complaint. The Plaintiff, CHEP USA
“CHEP”, filed a First Amended Complaint on February 2, 2024, naming Just Wood Pallets,
INC., as the only defendant. The Defendant filed its pending Motion to Dismiss on March 7,
2024. The Plaintiff submitted opposition to the Defendant's Motion on May 16, 2024, and a
reply brief was filed on May 24, 2024. Oral argument was heard by the court on June 7, 2024.
Docket No.: panvaetnaorder
Decided: 2024-06-18
Caption: Jeff Pan, MD, PC v. Aetna Life Ins. Co., et al.
Status: Unpublished
Summary:
THIS MATTER having been opened to the court by motion of Elliott Greenleaf, P.C.,
attorneys for Defendants, upon notice to Plaintiff, for an order granting Defendants' Motion to Dismiss;
and the Court having heard oral argument and considered the moving papers and the opposition papers;
and for good cause shown;
IT IS on this 1 day of October, 2019:
ORDERED that Defendants' Motion to Dismiss is DENIED for reasons stated in the
accompanying Statement of Reasons; and it if further
ORDERED that Defendants' counsel shall serve a copy of this Order and the accompanying
Statement of Reasons on all parties within 7 day of electronic posting hereof.