NJ Appellate Law Blog

No Civil Rights Act Claim by Demoted Municipal Employee Where He Did Not Actually Exercise First Amendment Rights

Heffernan v. City of Paterson, 777 F.3d 147 (3d Cir. 2015). [Disclosure: Victor A. Afanador and Susana Cruz Hodge, my colleagues at Lite DePalma Greenberg, LLC, represented the successful appellees...

The Effect of a Master Plan Reexamination Report

Myers v. Ocean City Bd. of Adj., 439 N.J. Super. 96 (App. Div. 2015). This opinion by Judge Ostrer, issued last Friday, addresses N.J.S.A. 40:55D-62(a), a provision of the Municipal...

Another Supreme Court Decision on a Certified Question, This Time on the Wage and Hour Law and Wage Payment Law

Hargrove v. Sleepy's, LLC, 220 N.J. 289 (2015). Today, speaking through Judge Cuff, the Supreme Court issued an opinion on a certified question posed to the Court by the Third...

Joint Legal Custody When One Parent Has Moved Abroad

Costa v. Costa, 440 N.J. Super. 1 (App. Div. 2015). This decision today by Judge Leone is a matrimonial appeal. Plaintiff Sandra Costa and defendant Paulo Costa, having married in...

Ascertainability Uber Alles? Not in a (b)(2) Class Action, Says the Third Circuit

Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2015). In Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), a damages class action under Federal Rule of Civil Procedure Rule...

Is a "Rehabilitation Hospital" a "Nursing Home"?

Bermudez v. Kessler Institute for Rehabilitation, 439 N.J. Super. 35 (App. Div. 2015). The different ways in which legislative language, even relatively precise definitions, can be seen to be ambiguous or unclear...

Remittitur, "Feel of the Case," and "Shocks the Conscience"

Mickens v. Misdom, 438 N.J. Super. 531 (App. Div. 2015). Today's opinion, by Judge Fisher, affirms the ruling of a Union County trial judge (apparently, Judge Hely, based on a...

"To Each His Own": The Affidavit of Merit Statute Requires an Affidavit From a "Like-Licensed" Professional

Hill International, Inc. v. Atlantic City Bd. of Educ., 438 N.J. Super. 562 (App. Div. 2014). The Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, requires that a plaintiff in...

The Dawn of Regulation of Cable Television

Forty years ago today, when cable television was in relative infancy, the Appellate Division decided In re Promulgation of Rules of Practice and Regulations for the Office of Cable Television,...

Deferring to the Factfinder's Credibility Determinations

New Jersey Division of Child Protection & Permanency v. B.O., 438 N.J. Super. 373 (App. Div. 2014). Very few appeals are based on the argument that the finder of fact...

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The Second and Third Published Appellate Division Decisions of the Current Term

As September turned to October, the Appellate Division issued its second and third published opinions of the Term. One was a decision by Judge Vinci in a civil appeal. The other ruling, in a criminal appeal, was authored by Judge Perez Friscia....

Appellate Division Oral Argument of the Week: Did it Violate a Class Action Settlement That Barred Mass Opt-Outs to Allow Opt-Outs From a Marketing Campaign That Solicited Opt-outs?

On Tuesday, September 30, judges on Part G of the Appellate Division will hear oral argument in Esposito v. Cellco Partnership d/b/a Verizon Wireless. The case follows from a $100 million nationwide class action settlement that had required class members who decided to exclude themselves from the settlement and potentially pursue their own litigation against Verizon to opt out individually, and barred mass opt-outs. However, Murphy Advocates, LLC, a Colorado law firm conducted a marketing campaign to create a mass opt-out that attracted about 11,000 class members who responded to Murphy that they wished to opt out....

A Pair of New Criminal Appeals for the Supreme Court

The Supreme Court announced that it has granted certification in two new cases. Both are criminal appeals. One is from a published opinion of the Appellate Division, while the other is from an unpublished per curiam decision by a three-judge panel....

Can a Plaintiff in a Civil Case Refuse to Testify at Trial After Being Served With a Defense Notice in Lieu of Subpoena and Having Been Ordered to Testify by the Trial Judge? An Anniversary

On this date in 2005, the Supreme Court decided Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100 (2005). The case involved a plaintiff who was shot in an apartment building in Atlantic City, which left him paralyzed. He brought a negligence suit against a number of defendants, including Atlantic City Housing & Urban Renewal Associates ("ACHURA"), the owner of the apartment building....