NJ Appellate Law Blog – NJ Appellate Lawyer Bruce D. Greenberg blogs about Appeals and Appellate Law Practice

No New Trial for Plaintiff Who Strategically Did Not Object to Trial Testimony That Was Inconsistent With Discovery Responses

T.L. v. Goldberg, 238 N.J. 218 (2019). The issue in this medical malpractice case was whether plaintiff was entitled to a new trial because defendant, without objection by plaintiff, offered...

The Supreme Court Takes Up Two Published Appellate Division Cases and a Key Hoboken Land Use Ruling

The Supreme Court announced late yesterday that it has granted certification in three cases. Two of the matters produced published opinions in the Appellate Division. The first of those is...

Faxes That Are Not "Advertisements" Do Not Violate The Telephone Consumer Protection Act Even if Sent for a Commercial Purpose or Motivated by Profit

Mauthe, M.D., P.C. v. Optum Inc., 925 F.3d 129 (3d Cir. 2019). Plaintiff, a medical practice, received an unsolicited fax from defendants. Defendants maintain a database of healthcare providers, a...

The Three Tests for Confidentiality of Litigation Documents

In re Avandia Marketing, Sales Practices and Products Liability Litigation, 924 F.3d 662 (3d Cir. 2019). This appeal had an unusual subject: whether certain documents that defendant GlaxoSmithKline ("GSK") had...

A Busy Few Weeks for the Appellate Division

In the last several weeks, this blog has largely focused on Supreme Court decisions and grants of review. That was not meant to slight the Appellate Division, whose judges have...

Charitable Immunity Sweeps Broadly to Protect Monmouth University

Green v. Monmouth University, 237 N.J. 516 (2019). In a unanimous opinion by Justice Fernandez-Vina today, the Supreme Court resolved a case that had divided the Appellate Division, as discussed...

A Qualified Immunity Case and a Tort Claims Act/Legal Malpractice Case for the Supreme Court

Add two more cases to the Supreme Court's docket. One of them is before the Court as of right, by virtue of a dissent in the Appellate Division. In the...

Appellate Courts Can Decline to Review Arguments Made Below as to Other Issues, But Not as to the Issue Actually on Appeal

Chirino v. Proud 2 Haul, Inc., 458 N.J. Super. 308 (App. Div. 2017), aff'd o.b., 237 N.J. 440 (2019). There is a long-settled general rule that an appellate court will...

Two Cases About Access to Swimming

Susko v. Borough of Belmar, 458 N.J. Super. 583 (App. Div. 2019); Curto v. A Country Place Condominium Association, 921 F.3d 405 (3d Cir. 2019). Yesterday, while I was in...

Waiver, Forfeiture, the Plain Error Doctrine, and the "Third Circuit Model Jury Instructions"

Robinson v. First State Community Action Agency, 920 F.3d 182 (3d Cir. 2019). This opinion by Judge Fuentes today affirms a plaintiff's verdict in a jury trial under the Americans...

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"Hot Fun in the Summertime": Appellate Division Summer Parts

In an Order available here, Chief Justice Rabner announced the lineup for the Appellate Division's summer Parts. As has been customary, the "summer" runs not between the meteorological start and end dates for summer, nor from Memorial Day to Labor Day, but from June 16 through September 7....

The Supreme Court Confirms That Municipalities Can be Subjected to Sanctions for Frivolous Litigation

Borough of Englewood Cliffs v. Trautner, ___ N.J. ___ (2025). This appeal presented the question of whether municipalities can be liable to pay sanctions for frivolous litigation, under the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1 ("the FLS"). In a 5-0 opinion written by Justice Fasciale (Chief Justice Rabner and Justice Hoffman did not participate), the Court affirmed, as modified, the decision of the Appellate Division that upheld the Law Division's imposition of FLS sanctions against the Borough....

The "Castle Doctrine"

State v. Bragg, ___ N.J. ___ (2025). A jury found defendant guilty of twelve charged counts, including attempted murder, kidnapping, aggravated assault, terroristic threats, possession of a weapon for an unlawful purpose, endangering, and two lesser-included offenses of harassment. Some of those charges involved the use of deadly force. Persons may not use deadly force if the can retreat with complete safety. But under the "castle doctrine," an exception to the general rule, a person "is not obliged to retreat from his dwelling, unless he was the initial aggressor." N.J.S.A. 2C:3-4(b)(2)(b)(i). That doctrine derives from the common law....

No Arbitrariness in Rejection of Public Construction Bid That Failed to Include a Properly Signed, Required Consent of Surety

In the Matter of Protest Filed by El Sol Contracting and Construction Corp., Contract T100.638, ___ N.J. ___ (2025). This public bidding case resulted in a 5-2 split at the Supreme Court, the first non-unanimous ruling of the current Term. Justice Hoffman wrote the majority opinion, while Justice Fasciale authored the dissent for himself and Justice Pierre-Louis....