A Message From the Editor

Welcome to the newly redesigned Daily Decision Alert, a service of the New Jersey Law Journal. The new alert provides an easier-to-read look and feel to the essential daily content needed for your practice. And for subscribers to the New Jersey Law Journal, it includes a link to the full text of the case. We hope you enjoy the revisions, and if you have any delivery issues, please contact ALM Customer Care at customercare@alm.com, Thank you.

– Brian Harris

Litigation | News

$4.9M Settlement Over Failure to Diagnose Vitamin Deficiency After Bariatric Surgery

By Charles Toutant

Expert testimony about malnutrition in bariatric surgery patients overcame defense assertions that plaintiff's symptoms were related to an eating disorder triggered by "buyers remorse" for the gastric sleeve procedure. Read More

Wilson v. The Hous. Auth. of the City of Newark

Practice Area: Contracts|Employment Litigation

Date Filed: 2025-04-24

Court: Appellate Division

Judge(s): Per Curiam

Plaintiff, a former employee of the Housing Authority of the City of Newark, appealed the dismissal of her second amended complaint against NHA and several individuals. Plaintiff's initial complaint, filed in 2010, was resolved in 2013 through a settlement agreement, which included a $40,000 payment to her and $20,000 to her attorney. In 2019, plaintiff filed a pro se complaint alleging breach of the settlement agreement and fraud, claiming the NHA failed to pay payroll taxes and pension contributions, and improperly issued a Form 1099 instead of a Form W-2. Defendants moved to dismiss the complaint for failure to state a claim. The trial court dismissed plaintiff's complaint, finding the settlement agreement did not constitute a "wage settlement" and did not require pension contributions. The trial court also found the fraud claim lacked specificity. On appeal, the court noted that the settlement agreement was referenced in the complaint and formed the basis of plaintiff's claims. The court ruled the trial court erred in dismissing the breach of contract claim with prejudice, as the settlement agreement's language suggested the $40,000 payment could be construed as wages given the fact that plaintiff was to be issued a W-2, warranting further examination. However, the court affirmed the dismissal of the fraud claim with prejudice, as plaintiff failed to specify which defendants made fraudulent statements and had acknowledged in the settlement agreement that she did not rely on any representations not set forth in the agreement.

Coppi v. Family Adventures N. Jersey, LLC

Practice Area: Dispute Resolution|Personal Injury

Date Filed: 2025-04-24

Court: Appellate Division

Judge(s): Per Curiam

Plaintiffs appealed the order of the trial court compelling arbitration of their complaint against defendants Family Adventures North Jersey, LLC, and UATP Management, LLC. Plaintiff sustained serious injury at Urban Air's premises but acknowledged that he signed a "Customer Release, Assumption of Risk, Waiver of Liability, Arbitration and Indemnification Agreement" before entering the park. Defendants moved to compel arbitration. Plaintiffs contested the enforceability of the arbitration clause, arguing inadequate notice of waiver of jury trial rights. Plaintiffs further argued that defendants waived arbitration rights by engaging in extensive discovery. The trial court found the arbitration provision clear and unambiguous, binding plaintiffs to its terms. On appeal, the court determined that Urban Air's litigation conduct, including significant discovery and delay in asserting arbitration rights, constituted a waiver of its right to arbitration. The court vacated the order compelling arbitration with Urban Air, remanding for further proceedings after lifting the stay and potentially affording the parties further opportunity to conduct discovery. Regarding UATP, the court noted the arbitration provision did not explicitly reference UATP, and since this issue was not argued at the trial level, it remanded for the trial court to address the applicability of the arbitration provision to UATP.

Makins v. Palace Rehab & Care Ctr.

Practice Area: Employment Litigation

Date Filed: 2025-04-24

Court: Appellate Division

Judge(s): Per Curiam

Petitioner and her former employer, Palace Rehab & Care Center, appealed the dismissal with prejudice of her two workers' compensation claims against another former employer, Premier Cadbury. Petitioner, a certified nursing assistant, worked for Palace from 2008 to 2016, began working for Cadbury in 2015, resigned from Palace in 2016 and worked for Cadbury until her termination in 2018. She filed a workers' compensation claim for a back injury in 2013 contending she was injured while working at Palace. Compensation judge approved the parties' settlement in 2017 but petitioner filed for review in 2018 asserting she was experiencing additional pain. She filed two additional claim petitions in 2018 naming Cadbury and alleging accidents in February and June 2018 while picking up residents. Cadbury denied the claims. Trial judge bifurcated the trial, first holding a trial on causation. Petitioner's testimony as to how one of the 2018 incidents occurred was inconsistent, differed from the accident descriptions in the incident reports, and she admitted to memory issues due to medication and long COVID. Trial court found her testimony not credible and concluded she failed to prove by a preponderance of the evidence that her injuries were causally related to the alleged accidents at Cadbury. Petitioner and Palace argued trial court confused legal and medical causation, improperly relied on petitioner's testimony to determine her credibility, and improperly relied on certain "hearsay documents." Court affirmed. Court noted no party objected to the bifurcation of the trial and it was not an abuse of discretion or plain error. There was no error in trial judge's consideration of petitioner's testimony or conclusion it was incredible. The parties' arguments regarding the inclusion of reports as evidence were belied by the record.

E.S. v. Q.J.P.

Practice Area: Family Law

Date Filed: 2025-04-24

Court: Appellate Division

Judge(s): Per Curiam

Defendant appealed the entry of a final restraining order against him. Plaintiff filed an action against defendant under the Prevention of Domestic Violence Act, alleging incidents of criminal mischief and harassment during their year-long relationship. At the FRO hearing, plaintiff testified about damage to a car she purchased for defendant, which he returned in a damaged state, and threats he made against her. Defendant claimed the damage was normal wear and tear and that he had purchased the car with cash. The trial court found defendant's testimony lacked credibility, particularly his explanation of the car purchase and the damage. The trial court determined defendant committed criminal mischief and harassment, citing the violent damage to the car and threats made to plaintiff, and found a need for a FRO. Defendant's application for a FRO was denied due to insufficient evidence of harassment or criminal mischief by plaintiff. Defendant appealed, arguing errors in the court's findings and procedural handling, including the admission of evidence not in the original pleadings and the denial of his FRO application. The court upheld the trial judge's findings, noting the deference given to family court decisions and the credibility assessments made. The court found no merit in defendant's arguments, including claims of procedural errors and the exclusion of evidence, noting that plaintiff's TRO application contained allegations of harassment that put defendant on notice of those allegations and that defendant presented no evidence to support his claims of criminal mischief or harassment by plaintiff.

In the Matter of the Application of the Twp. of Wayne

Practice Area: Land Use and Planning

Date Filed: 2025-04-24

Court: Appellate Division

Judge(s): Per Curiam

Township of Wayne and its Planning Board appealed trial court orders that found that Wayne acted in bad faith by adopting a supplemental resolution that breached a settlement agreement with AvalonBay Communities, Inc. and awarded Avalon attorneys' fees and per diem penalties. Wayne initially sought a declaratory judgment to confirm its zoning code was constitutionally compliant and sought immunity from builder's remedy litigation. Avalon intervened, and after protracted negotiations, the parties reached a settlement, which included provisions for site plan approval and penalties for delays. Avalon argued that Wayne acted in bad faith by adopting a supplemental resolution without notice, which added conditions to the site plan approval. The trial court found Wayne's actions constituted bad faith, invalidated the supplemental resolution, and awarded Avalon attorneys' fees and per diem penalties. On appeal, the court vacated these findings, concluding there was insufficient evidence of bad faith or improper adoption of the supplemental resolution. The court emphasized the need for a complete record, including hearing transcripts, to determine the propriety of or motive behind the planning board's actions and found that Avalon did not meet its burden of proof. The court reversed the trial court's orders, vacating the awards of attorneys' fees and per diem penalties.

Patierno v. Ahmed

Practice Area: Real Estate

Date Filed: 2025-04-24

Court: Appellate Division

Judge(s): Per Curiam

Plaintiffs appealed an order adopting a Boundary Commissioner's report regarding a property boundary dispute with defendants. The dispute arose over a discrepancy between the 1994 and 2005 surveys of the parties' adjacent properties, leading to a 4.5-foot and 1.7-foot discrepancy along the front and rear of the properties, respectively. Plaintiffs filed a complaint to appoint Boundary Commissioners under N.J.S.A. 2A:28-1. The appointed commissioners, which included a licensed surveyor, reviewed deeds, surveys, and plats over nine months and concluded that the 2005 Survey accurately identified the true boundary line. Plaintiffs objected to the report, leading to a summary trial where they proposed an alternative boundary line, which the trial court rejected. The trial court found no error in the commissioner's report and adopted it, dismissing plaintiffs' objections. On appeal, plaintiffs argued that the report improperly affected non-party properties, the trial court failed to consider alternative resolutions, and the report relied on circumstantial evidence. The court found that plaintiffs had initially certified that no other parties were involved, and the neighboring landowners chose not to participate after being notified. The court determined that the Boundary Commissioner statute only addressed the dispute between the two properties and did not require adjustments to other properties. The court concluded that the trial court correctly applied the statute and found no abuse of discretion in adopting the commissioners' report, affirming the trial court's decision.

State v. Carroway

Practice Area: Criminal Law

Date Filed: 2025-04-24

Court: Appellate Division

Judge(s): Per Curiam

Defendant appealed the denial of his petition for post-conviction relief without an evidentiary hearing. Defendant shot two victims in March 2016 because he believed they were involved in the recent murder of his friend. He conspired with others in May 2016 to carjack a vehicle. He pled guilty and was sentenced in accordance with his plea agreement. Sentencing court noted he was 19 years old and had an extensive juvenile record. Defendant argued his counsel failed to argue mitigating factors, to challenge aggravating factors, oppose consecutive sentencing and file a direct appeal. PCR court found defendant failed to articulate which mitigating factors should have been argued, examined the mitigating factors and found none applied, and held defendant's extensive juvenile record and the seriousness of his offenses justified the aggravating factors and consecutive sentences. Court agreed with the PCR court's assessment that sentencing was appropriate, that defendant failed to identify any applicable mitigating factors and found defendant's claims did not warrant an evidentiary hearing.

State v. Sheppard

Practice Area: Criminal Law

Date Filed: 2025-04-24

Court: Appellate Division

Judge(s): Per Curiam

Defendant appealed the denial of his petition for post-conviction relief without an evidentiary hearing. State alleged defendant masturbated in a videogame store in the presence of two minors. The incident was recorded on surveillance video. Defendant later pleaded guilty to third-degree endangering the welfare of a child in exchange for a recommended four-year prison sentence. At the plea hearing, the court took recess to allow plaintiff to speak with his attorney. Defendant then stated he understood the deal and was satisfied with his representation. Defendant's direct appeal was withdrawn and dismissed. His PCR petition asserted his plea was not voluntary, counsel failed to communicate effectively and go over discovery and to argue mitigating factors. PCR court found his claims were not supported by an affidavit and were contradicted by the record. Defendant argued his claims of ineffective assistance were supported by material facts outside the record and a evidentiary hearing was necessary. Court affirmed for the reasons expressed by the PCR court and found defendant's assertions as to counsel's failure were no more than bald assertions.

State v. Rodriguez

Practice Area: Criminal Law

Date Filed: 2025-04-24

Court: Appellate Division

Judge(s): Per Curiam

Defendant, acting pro se, appealed the denial of his motion to correct an alleged illegal sentence. Defendant and co-defendants were indicted on multiple charges stemming from a gang-related kidnapping and murder. Defendant was found guilty on multiple counts of conspiracy to commit kidnapping, conspiracy to commit murder, murder, felony murder and attempted murder. He was sentenced to two consecutive life terms under the No Early Release Act, but on appeal, his sentence was adjusted to an aggregate of 60 years with parole ineligibility. Defendant's subsequent PCR and federal habeas corpus petitions were denied. In 2023, defendant moved to correct his sentence, arguing ineffective assistance of counsel for not presenting mitigating factors during sentencing. Trial court found no evidence that mitigating factors two, four, eight, nine, eleven, thirteen and fourteen were overlooked. Defendant argued trial court erred by not applying Rule 3:29 and failed to apply overall fairness. Court found the sentences imposed were within the permissible sentencing ranges, were not illegal and were appropriately run consecutively. Court noted defendant failed to file a direct appeal following his resentencing under Rule 2:4-1(a) and could not now raise arguments concerning mitigating factors. Court also noted defendant's motion to convert an illegal sentence was a second PCR petition and was time-barred. Moreover, defendant did not provide the transcripts of his 2004 resentencing hearing and without those transcripts, defendant's arguments were pure speculation. Court also rejected defendant's argument that trial judge failed to comply with Rules 1:7-4 and 3:29.

In the Matter of the Civil Commitment of T.T.

Practice Area: Criminal Law

Date Filed: 2025-04-24

Court: Appellate Division

Judge(s): Per Curiam

Offender appealed the judgment that continued his civil commitment to the Special Treatment Unit under the Sexually Violent Predator Act. Offender's history of violent sexual assaults included offenses against two children. He was adjudicated delinquent in 1977 for sodomy with a child and sexually assaulted and brutally beat the daughter of his romantic partner in 1990. He gave wildly conflicting accounts of that offense and pled guilty to first-degree sexual assault. While incarcerated he was accused by a mentally handicapped inmate of a forceful sexual assault. He also had two prison disciplinary infractions for engaging in sexual activity. He also had a significant non-sexual criminal history including convictions for robbery and burglary. He had been civilly committed since 2000, with multiple recommitments following periodic reviews. State presented expert testimony from a psychiatrist and a psychologist at his 2023 hearing. They diagnosed him with pedophilic disorder, antisocial personality disorder and multiple substance abuse disorder and opined he was highly likely to reoffend if released, based on his lack of progress in treatment and failure to internalize treatment concepts. Trial court found State had overwhelmingly proven offender's likelihood to reoffend if not confined. Offender argued the experts' opinions were net opinions and trial court imposed the burden of proof on him to prove he was not at high risk of reoffending Court found the record amply supported trial court's decision and trial judge properly applied the SVPA standards. Record did not support offender's contention that the experts' opinions were net opinions. They explained the factual bases for their opinions and the correlation of those facts to offender's clinical presentation and likelihood to reoffend.

Borowski v. Kean Univ.

Practice Area: Civil Rights

Date Filed: 2025-04-16

Court: U.S. District Court for New Jersey

Judge(s): District Judge Martin

Plaintiff former adjunct professor moved for reconsideration of the grant of defendant's motion to dismiss or in the alternative to amend her §1983 complaint arguing a state policy regarding offensive remarks in the workplace was unconstitutional and violated the First Amendment free speech clause. Plaintiff alleged she was unlawfully relieved of her teaching duties after making remarks that were offensive and in violation of a state policy prohibiting discrimination in the workplace. Defendants moved to dismiss the complaint, citing Younger abstention, Eleventh Amendment sovereign immunity, and failure to state a claim. Trial court initially dismissed the complaint because plaintiff's then-underlying state administrative action constituted an ongoing civil enforcement proceeding. Plaintiff appealed and Third Circuit vacated and remanded the case. On remand, trial court dismissed the complaint on immunity grounds but allowed plaintiff to amend her First Amendment claim. Plaintiff filed an amended complaint and defendants moved to dismiss, arguing lack of standing since plaintiff no longer worked for defendant university. Trial court dismissed the amended complaint, finding plaintiff's claims were speculative and she lacked standing for declaratory relief. Court denied plaintiff's motion for reconsideration but granted permission to further amend her complaint. [Filed April 16, 2025]

Posternock v. Sirius XM Radio Inc.

Practice Area: Consumer Protection|Dispute Resolution

Date Filed: 2025-04-15

Court: U.S. District Court for New Jersey

Judge(s): District Judge Shipp

Defendant moved to compel arbitration and stay proceedings in plaintiff's action alleging violations of New Jersey consumer protection laws. Plaintiff opposed the motion, arguing that she did not clearly waive her right to sue. Plaintiff, a former Sirius XM subscriber, had accepted a customer agreement, which included an arbitration clause, during her subscription process. Each time she modified her subscription, she was informed that her subscription was governed by the agreement, which was available online, and that she was expressly agreeing to the terms. Plaintiff argued that she did not unambiguously agree to the full customer agreement, but the court found this argument unpersuasive. The court determined that plaintiff had reasonable notice of the terms and had manifested an intention to be bound by the agreement by expressly stating that she was accepting its terms, including its arbitration provision. The court found no genuine dispute of material fact regarding plaintiff's acceptance of the customer agreement and granted defendant's motion to compel arbitration and stay the proceedings. [Filed April 15, 2025]

executive director

New Jersey Law Revision Commission – Newark, New Jersey

notice of request for proposals for legal services

New Jersey Schools Development Authority – Trenton, New Jersey

health law associate – ct

Shipman & Goodwin LLP – Hartford, Connecticut

products liability, mass torts and consumer class action attorneys

McCarter & English, LLP – Carmel, Indiana

litigation associate

Porter Thomas Grabell & Baumwoll, P.C. – Englewood Cliffs, New Jersey

family law partner

Einhorn, Barbarito, Frost, Botwinick, Nunn & Musmanno PC – Denville, New Jersey

corporate associate, east brunswick or newark, nj

McCarter & English, LLP – Newark, New Jersey

edison attorney with virtual practice seeking an office sharing situation

LARRY PLUMMER LAW, LLC – Edison, New Jersey

attorney - teacher performance unit, level 3 - 14413

New York City Department of Education – New York, New York

labor relations attorney (level 3) - 14724

New York City Department of Education – New York, New York

personal injury law firm associate

CourtLaw Injury Lawyers, LLC – Perth Amboy, New Jersey

paralegal / legal secretary

CourtLaw Injury Lawyers, LLC – Perth Amboy, New Jersey

products liability, mass torts and consumer class action attorneys

McCarter & English, LLP – Newark, New Jersey

environment & energy associate

McCarter & English, LLP – Newark, New Jersey

attorney

Oxfeld Cohen – Newark, New Jersey

trust & estates associate

Winne Banta Basralian Kahn PC – Hackensack, New Jersey

executive director – state commission of investigation

NJ State Commission of Investigation – Trenton, New Jersey