NJ Appellate Law Blog

Frustration of Purpose and Impossibility of Performance Must be Pleaded as Affirmative Defenses

JB Pool Management, LLC v. Four Seasons at Smithville Homeowners Ass'n, Inc., 431 N.J. Super. 233 (App. Div. 2013). Plaintiff, a pool management company, contracted with defendant condominium association to supply lifeguards...

The Passive Voice (and Persuasive Legislative History) Makes the Difference in Statutory Interpretation

Cologna v. Board of Trustees, Police & Firemen's Retirement Syst., 430 N.J. Super. 362 (App. Div. 2013). By statute, a former member of the Police and Firemen's Retirement System ("PFRS") normally has two...

Non-Conforming Structure That is More Than "Partially" Destroyed Cannot be Rebuilt Without a Variance

Motley v. Seaside Park Bd. of Adj., 430 N.J. Super. 132 (App. Div. 2013). N.J.S.A. 40:55D-68 allows a non-conforming use or structure to be "restored or repaired in the event of partial...

Res Ipsa Loquitur

Mayer v. Once Upon a Rose, Inc., 429 N.J. Super. 365 (App. Div. 2013). An employee of defendant, a florist, who was setting up floral arrangements for an engagement party, allegedly gripped a...

Draft Agency Report is Absolutely Protected From Disclosure Under Open Public Records Act; Government Records Council May Not Decide Common Law Right of Access Claims

Ciesla v. New Jersey Dep't of Health & Senior Services, 429 N.J. Super. 127 (App. Div. 2012). This was an appeal of a decision of the Government Records Council ("GRC"), the state...

The Appellate Division Limits DEP's Powers

Des Champs Laboratories, Inc. v. Martin, 427 N.J. Super. 84 (App. Div. 2012). This opinion by Judge Sabatino, for a unanimous Appellate Division panel, may lead to one of the most important Supreme Court decisions in years in the...

Mass Tort Defendants May Retain as Experts Doctors Who Treated Patient-Plaintiffs, But Those Doctors Cannot be Involved in the Cases of Those Same Patient-Plaintiffs

In re Pelvic Mesh-Gynecare Litig., 426 N.J. Super. 167 (App. Div. 2012). In this mass tort matter involving medical devices that are used to treat pelvic organ prolapse and stress urinary incontinence, the...

The Boundaries of Expert Opinion

State v. Locascio, 425 N.J. Super. 474 (App. Div. 2012). Expert opinion is an area in which decisions in the criminal realm find their way into civil cases as well. For example, Kemp...

Front Pay

Quinlan v. Curtiss-Wright Corp., 425 N.J. Super. 335 (App. Div. 2012). This is a long-running employment discrimination case that came back to the Appellate Division after a remand by the Supreme Court....

Independent of AT&T v. Concepcion, Arbitration Clauses in Consumer Contract Are Ineffective If They Conflict With Each Other

NAACP of Camden County East v. Foulke Management Corp., 421 N.J. Super. 404 (App. Div. 2011). This consumer class action was the occasion for another typically scholarly opinion by Judge Sabatino. Geraldine...

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Appellate Division Oral Argument of the Week: Must Representative Actions Under the New Jersey Wage and Hour Law or the Prevailing Wage Act Satisfy Rule 4:32, Which Governs Class Actions?

On Thursday, March 12, the Appellate Division will hear oral argument in Martinez v. T. Slack Environmental Services, Inc. The issue on appeal is whether plaintiff's lawsuit, predicated on the New Jersey Wage and Hour Law, and the Prevailing Wage Act, must satisfy the criteria of Rule 4:32, the class action rule. The Law Division found that unnecessary....

Appellate Division Oral Argument of the Week: Must Representative Actions Under the Wage and Hour Law or the Prevailing Wage Act Satisfy Rule 4:32, Which Governs Class Actions?

On Thursday, March 12, the Appellate Division will hear oral argument in Martinez v. T. Slack Environmental Services, Inc. The issue is whether plaintiff's lawsuit, predicated on the New Jersey Wage and Hour Law, and the Prevailing Wage Act, must satisfy the criteria of Rule 4:32, the class action rule. The Law Division found that unnecessary....

Two Land Use Decisions by the Appellate Division

This week began with two published opinions by the Appellate Division in different areas of municipal land use. Here are summaries:...

A Blizzard of Criminal Law Decisions Last Week

[Couldn't resist the title given last week's major blizzard in New Jersey] Last week was a big week for decisions in criminal appeals. All three of the Supreme Court's opinions last week, and both of last week's published Appellate Division opinions, were in criminal cases. Here are summaries....