Court Rules Update - New Jersey State Bar Association

Ethics & Professionalism Track 

Court Rules Update 

A review of the year’s OAE/OAA decisions and opinions and a 

summary of lawyers’ ethical responsibilities in the practice of law. 

Moderator: 

Speaker: 

Raymond M. Brown, Esq. 

Greenbaum Rowe Smith & Davis, LLP (Woodbridge) 

Hon. Peter G. Verniero (Ret.) 

Sills Cummis & Gross, PC (Newark). 

Carol Johnston, Esq. 

AOC Professional Services (Trenton)

NEW JERSEY COURT RULES 

CIVIL UPDATE 

(Parts I, II & IV, civil, non-family only) 

May 16, 2013--NJSBA Annual Convention 

Borgata Hotel Casino & Spa 

Rules Governing The Courts 

OF THE 

State of New Jersey 

WITH COMMENTS & ANNOTATIONS BY 

SYLVIA B. PRESSLER (1969-2010) 

& 

PETER G. VERNIERO 

Presented by former Justice Verniero 

GANN LAW BOOKS 

NEWARK, N.J.

COPYRIGHT 2013 

by 

GANN LAW BOOKS 

Gann Law Books 

One Washington Park - Suite 1300 

Newark, N.J. 07102 

Phone: (973) 268-1200 

Fax: (973) 268-1330 

Website: www.gannlaw.com

1:4-8. Frivolous Litigation 

Part I. 

RULES OF GENERAL APPLICATION 

RULE 1:4. FORM AND EXECUTION OF PAPERS 

COMMENT 

2. Award of Sanctions. 

The nature of litigation conduct warranting sanction under the rule has been strictly construed. See In re 

Estate of Ehrlich, 427 N.J. Super. 64, 77 (App. Div. 2012), certif. den. 213 N.J. 46 (2013) (refusing to 

impose sanctions when there was good faith and reasonable basis in law for claim). 

RULE 1:6. MOTIONS AND BRIEFS IN THE TRIAL COURTS 

1:6-2. Form of Motion; Hearing 

COMMENT 

5. Paragraph (d); Oral Argument in Civil and Family Motions. 

It is, of course, clear that the question of oral argument of a motion as opposed to its decision on the 

papers is wholly inapposite where the motion is one which by its nature or because of contested factual 

issues requires an evidentiary hearing for disposition. Nevertheless, a normally required evidentiary hearing 

may be dispensed with if the moving papers fail to show a prima facie dispute of material fact. See 

also Segal v. Lynch, 211 N.J. 230, 264 (2012) (party's mere assertion of factual disputes insufficient to 

demonstrate existence of dispute requiring a hearing). 

RULE 1:7. GENERAL PROVISIONS FOR TRIALS 

1:7-4. Findings by the Court in Non-Jury Trials and on Motions 

COMMENT 

1. Paragraph (a); Making Findings. 

When the trial judge fails to make the required findings of fact either in his oral opinion or in writing subsequent 

to the filing of the notice of appeal pursuant to R. 2:5-1(b), the appellate court may avoid the 

necessity of a remand in an appropriate case by itself making findings of fact pursuant to the constitutional 

grant of necessary original jurisdiction and R. 2:10-5. But see, opting for a fact-finding remand, 

particularly where additional proofs may be necessary, Barnes v. East Orange Bd. of Ed., 427 N.J. Super. 

516, 520 (App. Div. 2012). 

1:8-7. Requests to Charge the Jury 

RULE 1:8. JURY 

COMMENT 

9. Particular Charges - Civil. 

9.4. Specific matters constituting error in the charges or interrogatories. 

9.4.3. Elements of the cause of action or defense. 

b. Professional malpractice--Medical malpractice: As to informed consent see Newmark-Shortino v. 

Buna, 427 N.J. Super. 285, 304 (App. Div. 2012), certif. den. 213 N.J. 45 (2013) (error to exclude instruction 

for informed consent when conflicting versions of evidence could have supported both informed consent 

and negligent diagnosis). 

1

Civil Court Rules Update 5/16/13 NJSBA Annual Meeting & Convention 

1:8-8. Materials to be Submitted to the Jury; Note-taking; Juror Questions 

HISTORY AND ANALYSIS OF RULE AMENDMENTS 

COMMENT 

1. Paragraph (a); Materials to be Submitted. 

1.1. Written charge. 

1.1. Written charge. Prior to its amendment effective September 2012, this rule had permitted submission 

to the jury of all or part of the charge in writing. The September 2012 amendment, however, made clear, 

through deletion of the "all or part of" language, that for both civil and criminal cases the decision 

whether to provide written instructions is an "all or nothing" decision. This rule does not, however, authorize 

the judge, prior to deliberations, to give the jury part of the charge orally and part in writing. It is 

reversible error for the entire charge not to be given orally, and the submission of written instructions 

must be regarded as supplementary only. 

RULE 1:10. CONTEMPT OF COURT; ENFORCEMENT OF LITIGANT'S RIGHTS 

1:10-3; Relief to Litigant. 

COMMENT 

4. R. 1:10-3; Relief to Litigant. 

4.4. Available relief. 

4.4.1. Generally. 

As noted, sanctions under R. 1:10-3 are intended to be coercive, not punitive, and hence the monetary and 

incarceration limitations of R. 1:10-1 and 1:10-2 do not apply. See Milne v. Goldenberg, 428 N.J. Super. 

184, 198 (App. Div. 2012). 

RULE 1:12. DISQUALIFICATION AND DISABILITY OF JUDGES 

1:12-1. Cause for Disqualification; On the Court's Motion 

COMMENT 

7. Paragraph (g); Other Reasons Precluding a Fair Hearing. 

7.3. General challenges. 

And see DePascale v. State, 211 N.J. 40, 44 (2012) (rule of necessity requires the Court to construe the 

meaning of the New Jersey Constitution, even if the issue to be resolved involves a pecuniary interest of 

the entire judiciary). 

RULE 1:13. MISCELLANEOUS RULES AS TO PROCEDURE 

1:13-8. Priorities of Liens and Encumbrances Determined as of Commencement of Action 

COMMENT 

4. Priorities Involving Attorney Liens. Attorney's common law retaining liens were prohibited by amendment of RPC 

1.16 (d), effective April 1, 2013. 

7. Priorities Involving Construction Lien Law, N.J.S. 2A:44A-1 to 2A:44A-38. 

And see, as to the law, generally, L & W Supply Corp. v. DeSilva, 429 N.J. Super. 179, 183-184 (App. 

Div. 2012). 

1:13-9. Amicus Curiae; Motion; Grounds for Relief; Briefs 

COMMENT 

The rule as now written has been construed as establishing a liberal standard for permitting amicus 

appearances. See also In re State ex rel. Essex Cty, 427 N.J. Super. 1, 5 (Law Div. 2012). 

2


RULE 1:14. CODES OF ETHICS 

COMMENT 

1. Professional Conduct. 

1.1. Generally. 

RPC 1.9 prohibits attorneys from representing clients in matters that are the same or substantially related 

to matters in which former clients have an adverse interest. In either case disqualification is required 

absent the client's consent. Twenty-First Cen. v. Transit Corp., 210 N.J. 264, 276 (2012) 

RULE 1:15. LIMITATION ON PRACTICE OF ATTORNEYS 

1:15-3. Limitations on Practice of Other Attorneys 

COMMENT 

4. Representational Conflicts Involving Private Clients. 

4.1. Post-2004 decisions. 

See Twenty-First Cen. v. Transit Corp., 210 N.J. 264, 275 (2012) (when firm previously represented 

former client during the start of a project, it could not represent another client in litigation arising out of 

the same project without written consent of the former client because the representations were considered 

to be in the same dispute). 

RULE 1:21. PRACTICE OF LAW 

1:21-1. Who May Practice; Attorney Access and Availability; Appearance in Court 

COMMENT 

1. Paragraph (a); Qualifications. 

Attorneys had been required to maintain a bona fide office which had been defined as a place where clients 

are met, files are kept, the telephone answered, mail received and where, in short, actual legal business 

is conducted by an attorney in actual attendance. By amendments, however, effective February 2013, 

this paragraph of the rule was amended to eliminate the bona fide office requirement. Instead, the rule 

now requires, in new subparagraph (1), that when attorneys do not maintain a "fixed physical location for 

the practice of law" (an undefined term that presumably comports with the definition of bona fide office 

contained in the pre-amendment rule), they must nevertheless "designate one or more fixed physical locations 

where client files and the attorney's business and financial records may be inspected on short notice 

by duly authorized regulatory authorities, where mail or hand-deliveries may be made and promptly 

received, and where process may be served on the attorney for all actions, including disciplinary actions, 

that may arise out of the practice of law and activities related thereto." The new rule provides as well that 

such attorneys must structure their practice so as to assure prompt and reliable contact and accessibility in 

accordance with RPC 1.4. New subparagraphs (3) and (4) provide further explanation as to this contact 

and accessibility. New subparagraph (2) provides that attorneys neither domiciled nor maintaining a fixed 

physical location for the practice of law in New Jersey must designate the Clerk of the Supreme Court as 

agent upon whom service of process may be made. Other than replacing "bona fide office" with "fixed 

physical location for the practice of law" this change conforms to prior practice. Plainly this provision 

satisfies any requirement in subparagraph (1) for a physical location for the service of process. Finally, 

this amendment eliminated the requirement for completion of the skills and methods course which had 

been superseded by the continuing legal education requirements adopted in 2009. 

3


1:36-3. Unpublished Opinions. 

RULE 1:36. OPINIONS; FILING; PUBLICATION 

COMMENT 

2. Unpublished Opinions. 

Although the parties may bring unpublished opinions to the attention of the court, the court itself may not 

cite an unpublished opinion except to the limited extent required by the application of preclusionary legal 

principles or case history. Badiali v. New Jersey Mfrs. Ins., 429 N.J. Super. 121, 126 n. 4 (App. Div. 2012) 

(citing of unpublished opinions was appropriate "to provide a full understanding of the issue presented" 

and under the rule's exception "any other similar [preclusionary] principles of law"). 

3. Construction and Application; Published Opinions. 

3.2. Opinions of the New Jersey Supreme Court. 

The precedential reach of a published opinion depends on the place in the judicial hierarchy of the court 

issuing the opinion. In general, opinions of higher courts bind all lower courts but opinions of co-equal 

courts do not bind each other. Thus, the decisions of the Supreme Court bind the Appellate Division and 

all trial courts. See, e.g., Gonzalez v. State Apportionment, 428 N.J. Super. 333, 362-363 (App. Div. 

2012), certif. den. 213 N.J. 45 (2013). 

4. Law of the Case. 

"Law of the case" is a non-binding discretionary rule intended, unless there is good cause not to do so, to 

avoid relitigation before the same court of the same issue in the same controversy--good cause including 

substantially different evidence, new controlling authority or a showing that the prior ruling was clearly 

erroneous. See Jacoby v. Jacoby, 427 N.J. Super. 109, 117 (App. Div. 2012) (the "law of the case" doctrine 

is not implicated at all by a judge's reconsideration of a prior interlocutory order; this principle 

remains applicable even if a different judge is reconsidering the prior interlocutory order). 

5. Retroactivity. 

Once a decision is rendered, the question arises as to which cases should be controlled by the rule of law 

announced in the opinion, i.e., how retroactive the rule should be made. If the case does not announce a 

new rule, then retroactivity analysis is not pertinent. See In re Board's Main Extension, 426 N.J. Super. 

538, 549, 551 (App. Div. 2012) (In re Centex Homes, LLC, 411 N.J. Super. 244 (App. Div. 2009) should 

have full retroactive effect because it invalidated as ultra vires the 2005 Board of Public Utilities regulations 

known as the Main Extension Rules, N.J.A.C. 14:3-8.1 to -8.13, ab initio, but did not announce any 

new rule of law). 

The issue of retroactivity of legislation when ex post facto concerns are not relevant is generally a matter 

of legislative intent, express or implied, absent considerations of manifest injustice based on reliance. See 

generally Asdal Builders v. Dept. of Env. Prot., 426 N.J. Super. 564, 580 (App. Div. 2012); Chiarello v. 

Bd. of Trust., Publ., 429 N.J. Super. 194, 198-201 (App. Div. 2012). For a discussion of how and when to 

apply the doctrine of manifest injustice to a retroactivity analysis, see Estate of Kosakowski v. Director, 

427 N.J. Super. 147, 150-152 (App. Div.), certif. granted 212 N.J. 460 (2012); Horizon Blue Cross v. 

State, 425 N.J. Super. 1, 26-27 (App. Div.), certif. den. 211 N.J. 608 (2012). 

RULE 1:38. PUBLIC ACCESS TO COURT RECORDS AND ADMINISTRATIVE RECORDS 

1:38-3; Court Records Excluded from Public Access. 

COMMENT 

3. R. 1:38-3; Court Records Excluded from Public Access. 

Paragraph (e) of the rule was amended, effective October 2010, to provide that certain information contained 

in the guardianship index shall be available for public access, namely, the name of the minor or 

incapacitated person and the municipality where such persons resided when the guardianship was cre- 

4


ated, the guardian's name and date of qualification, and the docket number and date of the guardianship 

judgment. Additionally, that earlier amendment authorized the incapacitated person and the minor upon 

reaching majority, as well as the other persons specified under the rule, to have access to all guardianship 

records and reports. The revisions also permit the general public to inspect and copy the guardianship 

judgment, the Letters of Guardianship, and any subsequent order dealing with the guardian's powers or 

limitations, provided any financial information contained in those documents is redacted.This paragraph 

was again amended, effective February 2013 to limit all of the provisions providing for public access to 

only New Jersey attorneys or title examiners seeking access in connection with transactions affecting 

property of the ward. The amendment also provided for access for appointed New Jersey Judiciary 

Guardianship Monitoring Program volunteers. It also, for the sake of clarity, rearranged the order of the 

pertinent provisions. 

COMMENT 

5. R. 1:38-5; Administrative Records Excluded from Public Access. 

The court, in In re State ex rel. Essex Cty, 427 N.J. Super. 1 (Law Div. 2012), rejected the State's request 

for exclusive access to information, specifically birth dates, provided by potential jurors on questionnaires 

authorized by N.J.S. 2B:20-3. The State intended to use the information to run criminal background 

checks on prospective jurors. To the limited extent that R. 1:38-5(g) allows the Assignment Judge 

discretion to reveal this otherwise confidential information, the court found that such release should be 

undertaken only with "extreme caution," a standard not satisfied by the State's request due to privacy and 

other constitutional concerns. Id. at 26. 

Part II. 

Part II. RULES GOVERNING APPELLATE PRACTICE IN THE SUPREME COURT AND THE 

APPELLATE DIVISION OF THE SUPERIOR COURT 

RULE 2:2. APPEALABLE JUDGMENTS AND DETERMINATIONS 

2:2-3. Appeals to the Appellate Division from Final Judgments, Decisions, Actions and from Rules; Tax Court 

COMMENT 

1. General Principles. 

1.1. Paragraph (a); appeal to the Appellate Division as of right. 

In addition to those judgments that are clearly final, the rule lists a group of orders that, although technically 

interlocutory, are appealable as final judgments for reasons of public policy and expedition of judicial 

administration. The list includes orders compelling or denying arbitration. That provision follows 

Wein v. Morris, 194 N.J. 364, 380 (2008) (extending the as of right rule to orders compelling arbitration), 

and GMAC v. Pittella, 205 N.J. 572, 586 (2011)(extending the rule to orders denying arbitration), regardless 

of whether the order resolves all issues for all parties. See Merrill Lynch v. Cantone Research, 427 

N.J. Super. 45 (App. Div.), certif. den. 212 N.J. 460 (2012). The rule was amended effective September 

2012 to codify the GMAC v. Pittella holding with respect to orders denying arbitration. 

The list of appealable orders now includes orders deciding motions for leave to file a late notice of tort 

claim against a public entity pursuant to N.J.S. 59:8-9. It has been, however, the common practice for the 

application to be made in the tort action with the consequence that a grant would technically be interlocutory. 

For reasons of public policy, it was recommended by the Civil Practice Committee that whether the 

application is made in the tort action or by separate action, an order granting it should be as appealable as 

a final judgment as the order of denial. The rule expressly so provides. See Barnes v. East Orange Bd. of 

5


Ed., 427 N.J. Super. 516, 517 n. 2 (App. Div. 2012) (pursuant to Rule 2:2-3(a)(3), orders deciding 

motions to extend the time to file a notice of tort claim are appealable as of right). 

COMMENT 

2. Paragraph (a)(1); Appeals from Judicial Action. 

2.2. Appealable judgments. 

2.2.1. Appeals from final identified judgments, not opinions. 

Kandrac v. Marrazzo's Market, 429 N.J. Super. 79, 84 (App. Div. 2012). Thus an appeal will not lie from 

a correct judgment reached by the trial court for the wrong reason. See, e.g., G.D.M. v. Bd. of Educ. of 

Ramapo, 427 N.J. Super. 246 (App. Div. 2012). 

COMMENT 

3. Paragraph (a)(2): Appeals from Administrative Action. 


In re Veto by Gov. Chris Christie, 429 N.J. Super. 277, 291 (App. Div. 2012) (review of actions taken 

directly by the Governor is allowed under this rule). 

3.2. Exclusivity of Appellate Division jurisdiction. 

3.2.2. Exceptions. Beyond the particular need for record-making and fact-finding and because the allocation 

to the Appellate Division is not jurisdictional in the strict subject-matter sense, the Appellate Division 

may, in the public interest, opt to address the merits of a dispute improvidently brought before it. 

See, e.g., Natural Med. v. Dept. of Health, 428 N.J. Super. 259, 267 (App. Div. 2012) (where it was apparent 

that the administrative agency would not engage in fact-finding necessary for implementation of 

State's medical marijuana program with respect to applicant, the Appellate Division exercised its original 

jurisdiction because topic implicates public interest). 

3.3. Finality. 

As to specific determinations held to be final, see Natural Med. v. Dept. of Health, 428 N.J. Super. 259, 

266-267 (App. Div. 2012) (agency refusal to accept and review incomplete application akin to final judgment). 

3.4. Classification of administrative appeals. 

3.4.2. Reviewability of particular actions. a. Gubernatorial actions. Clearly some direct actions by the 

Governor are initially reviewable by the Appellate Division. See In re Veto by Gov. Chris Christie, 429 

N.J. Super. 277, 284-90 (App. Div. 2012) (upholding Governor's veto of Racing Commission minutes, 

which had the effect of nullifying allocation of monies). 

3.5. Exhaustion of administrative relief. 

For discussion of related concepts as to exhaustion of remedies for actions in lieu of prerogative writs, see 

Comment 6 to Rule 4:69-5. Exhaustion of all available administrative relief is ordinarily required before 

an appeal may be taken to the Appellate Division. The requirement of exhaustion of administrative relief 

is relaxable where pursuit of those remedies would be futile or illusory. Hawk v. New Jersey Inst. of 

Tech., 428 N.J. Super. 562, 570-571 (App. Div. 2012). Belief that pursuit of an administrative remedy 

would be futile based on preliminary statements made by administrative officials, however, is insufficient 

to satisfy the exhaustion requirement. See also Dock St. Seafood v. Wildwood, 427 N.J. Super. 189, 204 

(Law Div.), aff'd 425 N.J. Super. 590 (App. Div. 2012). And see Wayne Property Holdings v. Wayne, 427 

N.J. Super. 133, 144 (App. Div.), certif. den. 212 N.J. 463 (2012) (requiring developer to exhaust remedies 

before COAH in exclusionary zone case when COAH was reviewing municipality's compliance 

plan). 

6


RULE 2:6. APPENDICES; BRIEFS; TRANSCRIPT 

2:6-5. Contents of Reply Brief and Appendix 

COMMENT 

As to the impropriety of using a reply brief to add issues not theretofore raised, see L & W Supply Corp. 

v. DeSilva, 429 N.J. Super. 179, 186 n. 2 (App. Div. 2012). 

RULE 2:8. MOTIONS; DISMISSALS; SUMMARY DISPOSITIONS 

2:8-2. Dismissal of Appeals: Order; Stipulation 

COMMENT 

1. Dismissal on the Court's or a Party's Motion. 

1.2. Procedural and jurisdictional grounds for dismissal. 

1.2.1. Mootness. Mootness is ordinarily defined as the inability of a court because of attendant circumstances 

to grant judicial relief. Where one of several issues is moot, the court may decline to consider that 

issue. Even when all the legal issues are technically ripe for decision, "there can be institutional considerations 

of potential mootness and other factors that may nevertheless call for judicial restraint." But see, 

reaching the merits of a moot question because of its public importance or likelihood of recurrence or 

both, G.D.M. v. Bd. of Educ. of Ramapo, 427 N.J. Super. 246, 251 n. 1 (App. Div. 2012). 

2:10-2. Notice of Trial Errors 

RULE 2:10. SCOPE OF REVIEW 

COMMENT 

2. Applicability; Definitions. 

2.1. General principles. 

R. 2:10-2 is the rule defining noticeable error in terms of its magnitude. Errors having a clear capacity to 

have produced an unjust result are cognizable, and errors of lesser magnitude are not. Plain error, that is 

error that must be noticed whether or not properly preserved for appeal, is noticeable if it meets the 

"unjust result standard." That is to say, the definition of noticeable error and plain error are virtually identical. 

Rule 2:10-2 applies to criminal and civil appeals as well as to administrative appeals, replacing the 

more particularized provisions of the source rules with what is, in effect, the judicially developed and 

effectively interchangeable principles of noticeable, plain, harmful, and reversible error as contrasted to 

harmless and disregardable error. See, e.g., Newmark-Shortino v. Buna, 427 N.J. Super. 285, 309 (App. 

Div. 2012), certif. den. 213 N.J. 45 (2013) (Where a plaintiff has objected to the charge of proximate 

cause, the harmless error standard of review applies, and submission of the question of proximate cause 

to the jury will withstand attack under appellate review unless the error was "clearly capable of producing 

an unjust result."). 

COMMENT 

3. Questions of Law; Standard of Review and Error. 


On the scale of required deference that defines the standard of review, an appellate court owes no deference 

to the trial court's "interpretation of the law and the legal consequences that flow from established 

facts." and, hence, an appellate panel's review of legal issues is de novo. Thus the appellate court is not 

bound by the trial court's application of law to the facts or its evaluation of the legal implications of facts 

where credibility is not in issue. See In re Kollman, 210 N.J. 557, 577 (2012) (in expungement case, the 

trial court's interpretation of the law is not entitled to special deference and appellate court reviews legal 

questions de novo). Illustratively, issues involving interpretation of statutes or ordinances are questions of 

law reviewed de novo and hence no deference to the trial court is owed. Trautmann v. Christie, 418 N.J. 

Super. 559, 566 (App. Div. 2011), aff'd o.b. 211 N.J. 300 (2012) (scope of the Federal Drivers Privacy 

7


Protection Act, 18 U.S.C. §§ 2721-2725 prohibition against disclosure of personal and highly personal 

information presents a question of statutory interpretation subject to de novo review); McGovern v. Rutgers, 

211 N.J. 94, 108 (2012) (interpretion of Open Public Meetings Act (OPMA), N.J.S. 10:4-6 to -21 

was an issue of statutory interpretation and a question of law, subject to de novo appellate review); Murray 

v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012)(standard of review of decisions below construing 

the meaning of a statute, N.J.S. 26:2K-29 [providing immunity for acts or omissions "committed . . . 

in rendering of intermediate life support services in good faith"], was de novo); C.A. ex rel. v. Bentolila, 

428 N.J. Super. 115, 144 (App. Div. 2012) (reviewing de novo the trial court's interpretation of the Patient 

Safety Act ("PSA"), N.J.S. 26:2H-12.23 to -12.25). Similarly, an interpretation of a contract is ordinarily 

a legal question subject to de novo appellate review. See Burke v. Brandes, 429 N.J. Super. 169, 173 

(App. Div. 2012) (whether record is accessible under OPRA); Merrill Lynch v. Cantone Research, 427 

N.J. Super. 45, 57 (App. Div.), certif. den. 212 N.J. 460 (2012) (interpretation of arbitration clause is a 

matter of contract interpretation subject to de novo review). Khandelwal v. Zurich Ins. Co., 427 N.J. 

Super. 577, 585 (App. Div.), certif. den. 212 N.J. 430 (2012) (interpretation of an insurance contract typically 

raises questions of law). 

3.2. Review of dispositive motions. 

3.2.1. Summary judgment motions. 

In reviewing summary judgment orders, the propriety of the trial court's order is a legal, not a factual, 

question. Thus the appellate court applies the same standard as the trial court in respect of the same 

motion record. See Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012); Memorial Prop. v. Zurich 

Am. Ins., 210 N.J. 512, 524 (2012); Avis Budget Gp. v. City of Newark, 427 N.J. Super. 326, 337 

(App. Div. 2012); Khandelwal v. Zurich Ins. Co., 427 N.J. Super. 577, 585 (App. Div.), certif. den. 212 

N.J. 430 (2012); Suarez v. Eastern Intern. College, 428 N.J. Super. 10, 26-27 (App. Div. 2012); Mangual 

v. Berezinsky, 428 N.J. Super. 299, 306 (App. Div. 2012); Schools Dev. Auth. v. Marcantuone, 428 N.J. 

Super. 546, 555 (App. Div. 2012); Crystal Ice-Bridge v. Bridgeton, 428 N.J. Super. 576, 580 (App. Div. 

2012); L.A. v. DYFS, 429 N.J. Super. 48, 55 (App. Div. 2012); Tarabokia v. Structure Tone, 429 N.J. 

Super. 103, 106 (App. Div. 2012). That is, the movant is entitled to judgment if, on the full motion record, 

the adverse party, who is required to have the facts and inferences viewed most favorably to it, has not 

demonstrated a prima facie case 

3.4. Agency legal decisions. 

3.4.1. Interpretation of enabling statutes and regulations. 

Regardless of whether an administrative agency is acting in an adjudicative or a legislative capacity, the 

agency's interpretation of its own enabling statute and of its own regulations, while not binding on the 

appellate court, is entitled to great weight and should ordinarily be deferred to unless contrary to statutory 

authorization or plainly unreasonable, particularly where agency expertise is relevant to the interpretation. 

See, e.g., S.J. v. Div. of Med. Assistance, 426 N.J. Super. 366, 374 (App. Div.), certif. den. 212 N.J. 

461 (2012); Des Champs Laboratories v. Martin, 427 N.J. Super. 84, 101 (App. Div. 2012); C.A. ex rel. v. 

Bentolila, 428 N.J. Super. 115, 149 (App. Div. 2012); Makutoff v. Bd. of Review & Soc., 427 N.J. Super. 

218, 224 (App. Div. 2012). 

a. Deference to agency interpretation of enabling legislation and regulations. See, according such weight 

to an agency's interpretation of the statute it is responsible to implement and enforce and to the agency's 

own promulgated regulations thereunder, S.J. v. Div. of Med. Assistance, 426 N.J. Super. at 377-378; 

Ciesla v. N.J. Dept. of Health, 429 N.J. Super. 127, 148 (App. Div. 2012). 

b. Withholding deference to agency interpretation of enabling statute. Although the appellate court 

accords substantial weight to agency interpretation of its enabling statute, it is not, as noted, bound by the 

agency's interpretation thereof, or by its interpretation of its own regulation or determination. See Des 

Champs Laboratories v. Martin, 427 N.J. Super. 84, 101-103 (App. Div. 2012); A.Z. v. Higher Educ. Stu- 

8


dent, 427 N.J. Super. 389, 394 (App. Div. 2012); Castriotta v. Board of Educ., 427 N.J. Super. 592, 600- 

601 (App. Div. 2012). 

3.4.2. Other legal issues. 

An agency's determination of a strictly legal issue, not involving either interpretation of its enabling legislation 

or the exercise of agency expertise, is not entitled to deference, and the appellate court will consider 

those issues de novo. See, e.g., In re Board's Main Extension, 426 N.J. Super. 538, 548 (App. Div. 

2012). 

COMMENT 

4. Discretionary Rulings. 

4.8. Injunctive relief; other equitable remedies. 

Review of a court's grant or withholding of injunctive relief is subject to the abuse of discretion standard. 

See Stoney v. Maple Shade Tp., 426 N.J. Super. 297, 307, 317 (App. Div. 2012). 

COMMENT 

7. Standard of Review, State Administrative Agencies: Adjudicative Action. 

7.2. Substantial evidence rule generally. 

The fundamental principle governing review of agency adjudicative actions is that the agency decision 

will be sustained unless it is arbitrary, capricious, or unreasonable, unsupported by substantial credible 

evidence in the record as a whole, offensive to the federal or state constitution or inconsistent with its statutory 

mission. See, e.g. S.J. v. Div. of Med. Assistance, 426 N.J. Super. 366, 373 (App. Div.), certif. den. 

212 N.J. 461 (2012); Makutoff v. Bd. of Review & Soc., 427 N.J. Super. 218, 223 (App. Div. 2012); Natural 

Med. v. Dept. of Health, 428 N.J. Super. 259, 269 (App. Div. 2012). 

7.3. Agency fact-finding. 

The classic statement of the appellate court's role in respect of the agency's fact findings is to determine 

"whether the findings made could reasonably have been reached on sufficient credible evidence present in 

the record, considering the proofs as a whole with due regard to the opportunity of the one who heard the 

witnesses to judge of their credibility and with due regard also to the agency's expertise where such 

expertise is a pertinent factor." See, e.g., Makutoff v. Bd. of Review & Soc., 427 N.J. Super. 218, 223 

(App. Div. 2012); Lukasik v. Holloway, 428 N.J. Super. 1, 6 (App. Div. 2012). 

COMMENT 

8. Standard of Review, State Administrative Agencies: Regulatory Action. 

8.1. Generally; presumption of validity; arbitrary action. 

As a general proposition all legislative and legislative type actions, including rule promulgation, while 

subject to judicial review, are nevertheless presumed reasonable and required to be sustained if not arbitrary 

or unreasonable to effectuate the Legislature's purpose in granting the agency authority. See, e.g., 

G.D.M. v. Bd. of Educ. of Ramapo, 427 N.J. Super. 246, 259 (App. Div. 2012); In re State Funeral Dir. 

Ass'n, 427 N.J. Super. 268, 278 (App. Div. 2012); Ass'n of School Adm'rs v. Cerf, 428 N.J. Super. 588, 

595 (App. Div. 2012). Moreover, although the agency's rule must rest upon a factual basis in the record, 

the agency's factual findings are presumed correct and the agency's choice among reasonable alternatives 

factually supported will be sustained. See, declining to apply the arbitrary or unreasonable standard with 

respect to the review of the discretionary actions of a Governor, In re Veto by Gov. Chris Christie, 429 

N.J. Super. 277, 291-293 (App. Div. 2012). The judicial role in reviewing regulatory action is limited to 

consideration of: (1) whether the action violated the express or implied legislative policies, (2) whether 

there is substantial evidence in the record to support the agency's findings, (3) whether the agency clearly 

erred in reaching a conclusion unsupported by relevant factors; and (4) whether the agency's decision 

offends the State or Federal Constitution. See In re State Funeral Dir. Ass'n, 427 N.J. Super. 268, 282-283 

(App. Div. 2012), rejecting a challenge that regulations were unconstitutionally vague. See also generally 

9


G.D.M. v. Bd. of Educ. of Ramapo, 427 N.J. Super. 246, 260 (App. Div. 2012); Ass'n of School Adm'rs v. 

Cerf, 428 N.J. Super. 588, 596 (App. Div. 2012). And see, applying only the first and fourth factors with 

respect to the review of the discretionary actions of a Governor, In re Veto by Gov. Chris Christie, 429 

N.J. Super. 277, 291-292 (App. Div. 2012) (upholding Governor's discretionary decision making that did 

not offend the Constitution or violate express or implied legislative policies). Moreover, an agency's statutory 

authority is broadly construed in order to enable the agency fairly to implement legislative goals 

and policies, and deference is accorded to agency expertise. Des Champs Laboratories v. Martin, 427 N.J. 

Super. 84, 102-103 (App. Div. 2012); In re State Funeral Dir. Ass'n, 427 N.J. Super. 268, 279 (App. Div. 

2012). Interpretations of the statutes and cognate enactments by agencies empowered to enforce them are 

accorded substantial deference. See Ass'n of School Adm'rs v. Cerf, 428 N.J. Super. at 596. If there exists 

reasonable doubt about the existence of a delegated power, the power will not be implied. See also A.Z. v. 

Higher Educ. Student, 427 N.J. Super. 389, 394-395, 403 (App. Div. 2012) (invalidating HESSA regulation 

that changed the statutory scheme). Unless regulations are clearly ultra vires on their face, "the person 

attacking them has the burden of proving otherwise." See also Des Champs Laboratories v. Martin, 

427 N.J. Super. 84, 102 (App. Div. 2012) (DEP regulation imposing additional requirement for De Minimis 

Quantity Exemption not authorized by governing statute). 

8.2. Inconsistency with governing law. 

8.2.1. Enabling statute. Despite the breadth of agency rule-making authority, action taken contrary to, 

inconsistent with, or beyond the authorization of the enabling statute or its policy and purpose cannot be 

sustained. See generally Des Champs Laboratories v. Martin, 427 N.J. Super. 84, 107 (App. Div. 2012) 

(DEP regulation imposing additional requirement for De Minimis Quantity Exemption not authorized by 

governing statute); A.Z. v. Higher Educ. Student, 427 N.J. Super. 389, 394-395, 403 (App. Div. 2012). 

RULE 2:11. ARGUMENT; DETERMINATION; COSTS; REHEARING 

2:11-4. Attorney's Fees on Appeal 

COMMENT 

2. Construction and Application. 

Litigants appearing pro se, however, are not entitled to attorney's fees. Segal v. Lynch, 211 N.J. 230, 258- 

261 (2012), holding that attorney representing herself in a fee dispute with respect to her role as a parenting 

coordinator in a family matter was not entitled to compensation for her time in court. 

Part IV. 

Part IV. RULES GOVERNING CIVIL PRACTICE: SUPERIOR CT, TAX CT AND SURROGATE'S CTS 

RULE 4:5. GENERAL RULES OF PLEADING 

4:5-4. Affirmative Defenses; Misdesignation of Defense and Counterclaim 

COMMENT 

3. Arbitration and Award Under New Jersey Law. 

3.1. Scope; arbitrability. 

3.1.1. General principles; arbitration agreement; enforcement. Because of the strong public policy favoring 

arbitration, the scope of arbitrability should ordinarily be liberally construed and all doubts resolved 

in favor of arbitration requiring dismissal of the arbitrable cause of action or issue and its reference to 

arbitration. See, e.g., Merrill Lynch v. Cantone Research, 427 N.J. Super. 45, 57-58 (App. Div.), certif. 

den. 212 N.J. 460 (2012). Clearly, a party cannot be required to participate in contractual arbitration 

unless the contract so requires. See Id., 427 N.J. Super. at 60-61 (membership in FINRA, alone, does not 

10


bind members to arbitrate all claims). Moreover, the arbitration clause of a contract cannot compel arbitration 

of issues beyond its intended scope. Id. at 58. 

3.2. Procedural issues. 

3.2.6. Determination of arbitrability. Issues of substantive arbitrability of claims and defenses, unlike 

issues of procedural arbitrability, are ordinarily subject to judicial determination in the first instance. See 

Merrill Lynch v. Cantone Research, 427 N.J. Super. 45, 59 (App. Div.), certif. den. 212 N.J. 460 (2012) 

(distinguishing between substantive and procedural arbitrability). 

3.3. Arbitration award; enforcement. 

3.3.3. Proceedings to confirm arbitration award. 

b. Vacation of award; grounds. Imperfect exercise of authority. See In re City of Camden, 429 N.J. Super. 

309, 331-334 (App. Div. 2013) (award vacated because arbitrator failed to follow statutory mandates). 

Exceeding scope of authority. See In re City of Camden, 429 N.J. Super. 309, 329 (App. Div. 2013) (arbitrator 

exceeded authority by factoring in a financial contribution from a third party that was not a signatory 

to the agreement being arbitrated). 

c. Conduct of confirmation/vacation hearing. As to remanding a matter to a different arbitrator, see In re 

City of Camden, 429 N.J. Super. 309, 336-338 (App. Div. 2013) (vacating award and remanding to a different 

arbitrator when court questioned arbitrator's objectivity). 

3.5. Specific causes. 

3.5.2. Automobile and other personal injury arbitration. Note that full litigational discovery is ordinarily 

not available in statutory PIP arbitration; rather, the rules of the National Arbitration Association, which 

administers the process, govern, and discovery disputes are dealt with by its dispute resolution professionals. 

NJ Manufacturers Insurance Co. v. Bergen Ambulatory Surgery Center, 410 N.J. Super. 270, 

274-276 (App. Div. 2009). And see Selective Ins. v. Hudson East, 210 N.J. 597, 607 (2012), finding that 

assignee medical providers are not subject to the same disclosure requirements as insureds but are subject 

to the limited discovery of N.J.S. 39:6A-13. 

Part IV. 

3.7. Public sector arbitration. 

3.7.3. Arbitration standards; confirmation and vacation. A public sector award contrary to existing law 

must be vacated. In re City of Camden, 429 N.J. Super. 309, 332 (App. Div. 2013). 

3.7.7. Compulsory interest arbitration. In re City of Camden, 429 N.J. Super. 309, 329-336 (App. Div. 

2013) (vacating award providing pay increases to union when arbitrator mandated that the State, which 

was not a party to the collective bargaining agreement at issue, supplement the city's funding). 

COMMENT 

4. Avoidable Consequences; Apportionment of Damages. 


The avoidable-consequences doctrine is a doctrine respecting mitigation of damages in tort causes of 

actions. That is, unlike comparative negligence, where damages are allocated between plaintiff and defendant, 

the avoidable-consequence/apportionment of damages does not directly address defendant's liability 

but rather his right to a reduction of his obligation to respond in damages, not because plaintiff's negligence 

contributed to the happening of the event but because a portion of plaintiff's damages are attributable 

to no one's liability or to another defendant or to plaintiff's conduct, either because of negligence 

committed by plaintiff after defendant's tort or failure to mitigate. See, generally, Fox v. Millman, 210 

N.J. 401, 424 (2012). 

11


COMMENT 

6. Choice-of-Law. 


The first step in a conflict of law analysis is to determine whether there is in fact a conflict of law between 

the states having a nexus to the matter. The question of whose law governs should not be addressed at all 

until the proponent for application of the law of another jurisdiction demonstrates that the law of the two 

jurisdictions differs. Cornett v. Johnson & Johnson, 211 N.J. 362, 374 (2012); In re Liquidation of Integ. 

Ins., 427 N.J. Super. 521, 530 (App. Div.), certif. den. 213 N.J. 44 (2013). New Jersey now applies the 

"significant interest test" of the Restatement (Second) Conflict of Laws, rather than the "governmental 

interest test" for tort cases. The tests are similar in application. See Pitcock v. Kasowitz, Benson, 426 N.J. 

Super. 582, 589 (App. Div. 2012). Both the significant relationship and governmental interest tests 

require that the law be applied on an issue by issue basis, and hence the law of a single jurisdiction may 

not apply to all issues. Cornett v. Johnson & Johnson, 211 N.J. 362, 374 (2012). 

6.2. Choice of limitations law. 

These choice-of-law tests also apply to choice-of-limitations law. Hence, when the suit in New Jersey is 

based on a foreign cause of action in which New Jersey has no substantial interest, the limitations law of 

the foreign jurisdiction likely will be applied under both the governmental interest and significant interest 

tests. Heavner v. Uniroyal, Inc., 63 N.J. 130 (1973) (applying governmental interest test). See also Cornett 

v. Johnson & Johnson, 211 N.J. 362, 374 (2012) (citing Heavner); Pitcock v. Kasowitz, Benson, 426 

N.J. Super. 582 (App. Div. 2012) (applying significant relationship test). 

6.3. Tort actions. 

6.3.1. General principles. Malicious use of process. See Pitcock v. Kasowitz, Benson, 426 N.J. Super. 

582, 589 (App. Div. 2012) (New York limitations law applied to malicious use of process claim involving 

a complex dispute centered there because New Jersey's interest in protecting residents from economic 

harm caused by their out-of-state professional activities is not an "`extreme and unusual circumstance'" 

justifying application of New Jersey's statute of limitations). Products liability. And see Cornett v. 

Johnson & Johnson, 414 N.J. Super. 365, 379-380 (App. Div. 2010), aff'd on other grds. 211 N.J. 362 

(2012) (applying Kentucky law to bar products claim for defective stent when plaintiff resided in that 

state and the stent operation occurred there). 

6.4. Contract actions; real property. 

6.4.2. Contracts of insurance. Product liability coverage. See In re Liquidation of Integ. Ins., 427 N.J. 

Super. 521, 532 (App. Div.), certif. den. 213 N.J. 44 (2013) (following New Jersey law in determining 

coverage liability of insolvent New Jersey insurer and out of state insureds) 

COMMENT 

7. Collateral Estoppel. 

7.1. General requirements. 

Application of the doctrine of collateral estoppel requires identity of the issues litigated and to be litigated, 

notice and a full and fair opportunity to be heard afforded the party sought to be precluded, and 

equality of forum. Winters v. North Hudson Reg. Fire, 212 N.J. 67, 85 (2012). And see Gannon v. American 

Home Products, 211 N.J. 454, 471-472 (2012) (applying federal test for collateral estoppel). 

7.1.2. Full and fair opportunity to be heard. As to the requirement of a full and fair opportunity to litigate 

the issue in the prior action, see Winters v. North Hudson Reg. Fire, 212 N.J. 67, 87 (2012) (administrative 

tribunals can provide full and fair opportunity to litigate issue). 

7.2. Equitable withholding of doctrine. 

Because collateral estoppel is an equitable doctrine, it will not be applied where it would be unfair to do 

so. But see Gannon v. American Home Products, 211 N.J. 454, 474-475 (2012) (appellate court erred in 

finding that, under the circumstances, equitable considerations precluded application of collateral estoppel 

doctrine). 

12


7.3. Scope; applicability. 

As to choice of law issues, the collateral estoppel effect of a judgment is determined by the law of the 

state which rendered it. Similarly, federal law determines the collateral estoppel effect of a judgment rendered 

in federal court. Gannon v. American Home Products, 211 N.J. 454, 471 (2012), applying four-factor 

collateral estoppel test under federal law. 

7.5. Specific application of the doctrine. 

7.5.1. Administrative agency litigation; effect of. There may be collateral estoppel consequences in later 

civil litigation with respect to an issue determined in prior administrative agency litigation. Also, note, a 

litigant in an administrative setting cannot withhold pursuing raised defenses in order to "save" them for 

"later duplicative litigation." Winters v. North Hudson Reg. Fire, 212 N.J. 67, 72 (2012) (barring subsequent 

whistle-blower litigation following administrative disciplinary proceeding). While administrative 

proceedings may have preclusive effect, an important caveat, however, is that the administrative proceeding 

must be attended by customary due-process procedures and conducted by an independent administrative 

law judge as a contested case. See Winters v. North Hudson Reg. Fire, 212 N.J. 67, 87 (2012) 

(administrative rulings that satisfy collateral estoppel standards may be given preclusive effect if they 

provide "`significant procedural and substantive safeguards' similar to those that are provided to litigants 

in courts of law"). 

7.5.5. Federal litigation. Federal, not state, principles of collateral estopppel govern whether a federal 

court judgment should be given preclusive effect. Gannon v. American Home Products, 211 N.J. 454, 

468-472 (2012), noting that although the elements of collateral estoppel under New Jersey and federal 

law are substantively similar, the federal framework is more constricting. 

COMMENT 

11. Discharge in Bankruptcy. 

11.1. Dischargeability. 

Gaskill v. Citi Mortg., Inc., 428 N.J. Super. 234, 245-246 (App. Div. 2012) (failure by debtor to provide 

notice to creditor of bankruptcy proceeding precluded avoidance of unperfected lien on equitable 

grounds). 

COMMENT 

15. Equitable Estoppel. 


The doctrine of equitable estoppel bars a party from disavowing its previous conduct where that conduct 

amounts to a concealment or misrepresentation of material fact unknown to the party claiming estoppel, 

where the conduct was intended or expected to be acted upon by the adverse party, and where the adverse 

party does in fact rely thereon in good faith in prejudicially changing its position. See Segal v. Lynch, 211 

N.J. 230, 254 (2012). 

COMMENT 

19. Governmental Immunity 

19.3. Governmental Immunity; Tort Claims Act. 

19.3.1. General principles. 

As in the case of all affirmative defenses, the statutorily reserved immunity under the Tort Claims Act 

must be pleaded and proved by the public entity asserting it. Crystal Ice-Bridge v. Bridgeton, 428 N.J. 

Super. 576, 585 (App. Div. 2012). 

19.3.2. Scope of the Tort Claims Act. 

Volunteer fire companies, first aid and ambulance squads - Crystal Ice-Bridge v. Bridgeton, 428 N.J. 

Super. 576, 586 (App. Div. 2012) (immunity for fire chief acting pursuant to statutory authority to combat 

fire). 

13


Among the entities not covered by the Act are: Port Authority of New York and New Jersey - Santiago v. 

NY & NJ Port Auth., 429 N.J. Super. 150, 162 (App. Div. 2012. The notice of claims provision of N.J.S. 

32:1-163 must be complied with before bringing suit against the Port Authority. Santiago v. NY & NJ 

Port Auth., 429 N.J. Super. at 159. 

19.3.4. Notice and time requirements. 

And see Barnes v. East Orange Bd. of Ed., 427 N.J. Super. 516, 519-520 (App. Div. 2012), reversing and 

remanding when there was no oral argument and no statement of reasons explaining the judge's basis for 

allowing the late filing. 

COMMENT 

20. Immunities. 

20.3 Government and government officers and employees immunities. 

20.3.5. Judicial proceedings immunity; litigation privilege. 

There is an absolute privilege, also known as the litigation privilege, and hence non-actionability, 

afforded to statements made in the course of judicial and quasi-judicial proceedings. The privilege does 

not shield a defendant from disciplinary proceedings. In re Giannini, 212 N.J. 479, 483 (2012). Nor 

would the privilege apply to shield attorneys from malpractice claims by their clients. See Buchanan v. 

Leonard, 428 N.J. Super. 277, 286-288 (App. Div. 2012). 

20.3.7. Official immunity for claims under 42 U.S.C. 1983 and N.J.S. 10:6-1 to 10:6-2. See also Reichle 

v. Howards, __ U.S. __, 182 L. Ed. 2d 985 (2012); Gormley v. Wood-El, 422 N.J. Super. 426, 433 (App. 

Div. 2011). Likewise, qualified immunity is an affirmative defense as to damages claims under the New 

Jersey Civil Rights Act, N.J.S. 10:6-1 to 10:6-2. Ramos v. Flowers, 429 N.J. Super. 13, 24 (App. Div. 

2012). Neither State nor federal law extends the immunity to claims for injunctive relief. Ramos v. Flowers, 

429 N.J. Super. at 24. 

20.4. Health care and emergency professional, providers and workers. Emergency medical care immunity; N.J.S. 

26:2K-14, 26:2K-29, 26:2K-43. 

The immunity does not extend to a rescue squad, as an entity, when rendering intermediate life support 

services. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584, 596 (2012). 

COMMENT 

21. Independent Contractor. 

Independent contractor rules apply to the relationship between a general contractor and its subcontractor. 

Hence the general contractor is not ordinarily vicariously liable for the negligence of the subcontractor. 

See also Tarabokia v. Structure Tone, 429 N.J. Super. 103, 112-113, 116-117 (App. Div. 2012) (general 

contractor did not have duty to assure safety of subcontractor's employee). As to the liability of a landowner 

for hazards encountered by the employee of an independent contractor, see also Nielsen v. Wal- 

Mart Store No. 2171, 429 N.J. Super. 251, 258-260, 264-265 (App. Div. 2013) (commercial condominium 

unit owner had duty to warn independent contractor's employee of dangerous condition on sidewalk 

abutting unit that condominium developer had a contractual duty to maintain). 

COMMENT 

22. Insurance Claims. 


The general rules for construction of insurance policies are thus based on the guiding principle that the 

interpretation favor the insured in order to meet his reasonable expectations. Accordingly, ambiguous 

provisions are construed liberally in favor of the insured, and exclusions and exceptions to coverage are 

strictly construed against the insurer. See, e.g., Memorial Prop. v. Zurich Am. Ins., 210 N.J. 512, 525 

(2012); Khandelwal v. Zurich Ins. Co., 427 N.J. Super. 577, 586 (App. Div.), certif. den. 212 N.J. 430 

(2012). When, however, the policy is clear as to its coverage, the insured is entitled to that coverage even 

if it is beyond his expectations. Stated differently, clear and unambiguous provisions will be construed 

14


according to their plain meaning whether or not coverage is thereby defeated. See Memorial Prop. v. Zurich 

Am. Ins., 210 N.J. 512, 525 (2012) 

22.2. Duty to defend and indemnify. 

The insurer's duty to defend its insured arises when there is correspondence between the allegations of the 

complaint against the insured and the policy language and the allegations, if proved, would potentially 

require indemnification under the policy, with ambiguities resolved in the insured's favor. The duty to 

defend extends to ill-founded and meritless suits against the insured provided the claims come within the 

coverage. Memorial Prop. v. Zurich Am. Ins., 210 N.J. 512, 529 (2012). 

22.3. Good faith obligation. 

As to the insurer's liability to its insured for a bad faith failure to pay first-party coverage claims, see also 

Badiali v. New Jersey Mfrs. Ins., 429 N.J. Super. 121, 125-126 (App. Div. 2012) (existence of appellate 

panel's unpublished opinion supporting insurer's position precludes finding of bad faith). 

22.8. Specific insurance issues. 

22.8.5. Workers' compensation insurance. 

As to the exclusivity bar, and its limited exceptions, as applied to company insurers, see Stancil v. ACE 

USA, 211 N.J. 276, 285-286 (2012). 

COMMENT 

23. Laches. 

Laches is an equitable defense available to a party who can prove both that the opposing party's delay in 

making the claim was unexplained, unexcused and unreasonable under the circumstances and that the 

party asserting laches was prejudiced thereby. See generally N.J. DYFS v. F.M., 211 N.J. 420, 445-446 

(2012). Laches, however, may not be used to shorten an otherwise permissible statutory limitations 

period, except in the "rarest of circumstances" or when "overwhelming equitable concerns" are present. 

Fox v. Millman, 210 N.J. 401, 422 (2012) (2012). And see In re Contest of November 8, 2011, 210 N.J. 

29, 66-67 (2012)(laches defense inappropriate when plaintiff has met an expressly applicable statutory 

limitations period). The defense remains available in those narrow instances when the limitations period 

is open for extension under doctrines such as the continuing violations doctrine. See Shepherd v. Hunterdon 

Center, 174 N.J. 1, 22-23 (2002). 

COMMENT 

25. Mistake. 

Under certain circumstances, rescission may be allowed based solely on a unilateral mistake. Stephenson 

v. Spiegle, 429 N.J. Super. 378, 384-385 (App. Div. 2013) (allowing rescission based on a unilateral mistake 

when an elderly individual tried but failed to establish a valid trust and the elderly individual's lawyer 

sought to retain the funds intended for the trust but made payable to him). 

COMMENT 

28. Preemption; Federal and State. 

28.1. General principles of federal preemption. 

And see Cornett v. Johnson & Johnson, 211 N.J. 362, 383-386 (2012). 

28.2. Specific federal legislative preemption. 

Food, drugs and cosmetics; medical devices; hazardous substances. See also Cornett v. Johnson & 

Johnson, 211 N.J. 362, 393-394 (2012) (Medical Device Amendments [21 U.S.C. § 360c to 360m] preempted 

some, but not all, of plaintiff's failure to warn and express warranty claims). Privacy. The Federal 

Driver's Privacy Protection Act does not preempt the state requirement that probationary drivers license 

holders display a decal. Trautmann ex rel. v. Christie, 211 N.J. 300, 303 (2012). Taxation. Avis Budget 

Gp. v. City of Newark, 427 N.J. Super. 326, 338-341 (App. Div. 2012) (consumer tax on renting cars 

within industrial zone surrounding airport does not violate Anti-Head Tax Act). 

15


COMMENT 

31. Public Policy; Illegality. 

31.2. Particular contracts and contractual provisions. 

31.2.7. Insurance clauses. 

Khandelwal v. Zurich Ins. Co., 427 N.J. Super. 577, 591 (App. Div.), certif. den. 212 N.J. 430 (2012) 

(intra-family exclusion in excess automobile insurance policy issued for a rental vehicle void against public 

policy). 

COMMENT 

36. Statute of Limitations. 

36.7. Specific State law claims. Bi-state agencies; actions against. 

Actions against the Port Authority are required to be brought within one year after accrual pursuant to 

N.J.S. 32:1-163. And see, requiring application of the Act's 60-day notice of claim, Santiago v. NY & NJ 

Port Auth., 429 N.J. Super. 150, 159, 163 (App. Div. 2012). 

COMMENT 

41. Waiver. 

Waiver is the intentional relinquishment of a known right. See, defining waiver, Mazdabrook Commons v. 

Khan, 210 N.J. 482, 505 (2012). 

COMMENT 

42. Workers' Compensation Exclusivity. 


The exclusivity of the compensation remedy applies to the employer's carrier to the extent it does not perform 

services beyond providing coverage for the employer's responsibilities. See also Stancil v. ACE 

USA, 211 N.J. 276, 277, 286, 292 (2012) (refusing to create a cause of action that would have allowed an 

injured worker to bring an action in the Law Division for additional injuries, pain and suffering occasioned 

by the compensation carrier's disregard of court orders requiring workers' compensation payment 

owed to the worker). 

42.6. Intentional torts. 

Compare cases sustaining summary judgment, Van Dunk v. Reckson Associates, 210 N.J. 449, 471-474 

(2012) (willfully exposing employee to some "likelihood" of injury, which was also a willful violation of 

OSHA, not sufficient to satisfy substantial certainty test under the circumstances). 

4:5-8. Pleading Special Matters 

COMMENT 

1. Paragraph (a); Pleading Fraud. 

1.2. Elements of fraud. 

1.2.1. Legal fraud. 

The basic elements of legal fraud are a knowing falsehood or misrepresentation made with the intention 

that the other person relies thereon and that person's reliance and consequent damage. See Suarez v. Eastern 

Intern. College, 428 N.J. Super. 10, 28 (App. Div. 2012). 

1.3. Specific causes of action grounded on fraud. 

1.3.1. Consumer fraud. As to the relationship between consumer fraud and common law fraud, see 

Suarez v. Eastern Intern. College, 428 N.J. Super. 10, 28-29, 37-38 (App. Div. 2012) (affirming dismissal 

of common law fraud claim, but reversing summary judgment against Consumer Fraud Act claim; 

"learned professionals" not subject to licensing or regulation are covered by the Act). Schools and colleges. 

Misrepresentations regarding employability of institution's graduates are actionable under the Act. 

Suarez v. Eastern Intern. College, 428 N.J. Super. 10, 34-35 (App. Div. 2012). 

16


RULE 4:6. DEFENSES AND OBJECTIONS: WHEN AND HOW PRESENTED; BY PLEADING OR MOTION; 

MOTION FOR JUDGMENT ON PLEADINGS 

4:6-2. How Presented 

COMMENT 

2. Lack of Subject Matter Jurisdiction; 4:6-2(a). 

2.2. Exclusivity of federal jurisdiction; interstate compacts. 

2.2.4. Interstate compacts. 

As to the Port Authority of New York and New Jersey, see Santiago v. NY & NJ Port Auth., 429 N.J. 

Super. 150, 156 (App. Div. 2012). 

2.7. Comity. 

Sajjad v. Cheema, 428 N.J. Super. 160, 180 (App. Div. 2012). 

COMMENT 

4. Failure to State a Claim; 4:6-2(e). 


4.1.1. Raising and adjudicating the defense. 

As to the standard informing decision on a motion to dismiss for failure to state a claim (according plaintiff 

very reasonable inference and the motion granted only in rare instances and ordinarily without prejudice), 

see Gonzalez v. State Apportionment, 428 N.J. Super. 333, 349 (App. Div.), certif. den. 213 N.J. 45 

(2013). 

4.2. Specific causes of action. 

4.2.1. Attorney conduct. 

As to the elements of legal malpractice generally, except in the most obvious case, expert testimony is 

required to support the cause of action. Accord, Buchanan v. Leonard, 428 N.J. Super. 277, 288-289 

(App. Div. 2012). 

4.2.2. CEPA; other employment actions. 

As to actions under the Conscientious Employees' Protection Act, N.J.S. 34:19-1 to 34:19-8 (CEPA), see 

Winters v. North Hudson Reg. Fire, 212 N.J. 67, 89-91 (2012) (failure to pursue CEPA claims in full in 

adminstrative hearing barred subsequent court action). 

4.2.3. Discrimination claims. 

a. Employment discrimination. The general provisions of New Jersey's Law Against Discrimination, 

N.J.S. 10:5-1 to 10:5-42 (LAD), are liberally construed and applied, whereas its exceptions are strictly 

construed, with doubts resolved in favor of application of the general provision. Ordinarily, in employment 

discrimination claims under the LAD, the New Jersey courts follow the four-prong test of McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973), namely, whether plaintiff is a member of the protected 

class, is qualified for the position, has suffered an adverse employment consequence, and the circumstances 

give rise to an inference of discrimination. This test applies when the plaintiff relies on circumstantial 

evidence of discrimination. A.D.P. v. ExxonMobil Research, 428 N.J. Super. 518 (App. Div. 

2012). As to employment discrimination claims under the LAD in which there is direct evidence of discrimination, 

New Jersey courts apply the burden shifting framework found under Price Waterhouse v. 

Hopkins 490 U.S. 228 (1989). A.D.P. v. ExxonMobil Research, 428 N.J. Super. 518, 533 (App. Div. 

2012). Unlike the McDonnell Douglas test, which only shifts the burden of production, the Price Waterhouse 

test shifts the burden of persuasion to the defendant to prove that even if the illegal bias were not a 

factor, the employment decision would have occurred. A.D.P. v. ExxonMobil Research, 428 N.J. Super. at 

535. As to disability discrimination in the workplace, see A.D.P. v. ExxonMobil Research, 428 N.J. 

Super. 518, 542-544 (App. Div. 2012) (rejecting employer's argument that requiring an alcoholic 

employee, who had no job performance issues, to agree to terms of an after-care contract in order to keep 

17


her job was a "reasonable accommodation"). As to what constitutes a disability under the LAD and cognate 

legislation, see A.D.P. v. ExxonMobil Research, 428 N.J. Super. 518, 536-537 (App. Div. 2012) (termination 

policy targeting alcoholics, without regard to job performance, violates the LAD). 

b. Public accommodation discrimination. See Stoney v. Maple Shade Tp., 426 N.J. Super. 297, 315, 317 

(App. Div. 2012) (court must employ requisite balancing test under ADA and LAD when addressing 

claim for injunctive relief claim). 

4.2.4. Federal and State Civil Rights Acts. 

As to claims brought under the New Jersey Civil Rights Act, see Ramos v. Flowers, 429 N.J. Super. 13, 

21 (App. Div. 2012) (discussing State claims for deprivation and interference with rights and qualified 

immunity). 

4.2.5. Contract claims - miscellaneous. 

Ford Motor Credit Co. v. Mendola, 427 N.J. Super. 226, 241-242 (App. Div. 2012) (breach of express 

warranty claim requires proof of failure of goods to perform as warranted, not product defect). As to contractual 

claims based on promissory estoppel, see Segal v. Lynch, 211 N.J. 230, 253-254 (2012), differentiating 

between promissory and equitable estoppel. 

4.2.6. Products liability. 

The Products Liability Act, N.J.S. 2A:58C-1 et seq. provides recourse for personal injury caused by a 

defective product and physical damage to property other than to the product itself. See, e.g., Ford Motor 

Credit Co. v. Mendola, 427 N.J. Super. 226, 240-241 (App. Div. 2012). As to the failure-to-warn liability 

of a pharmaceutical company with respect to prescription drugs, see also Bailey v. Wyeth, Inc., 424 N.J. 

Super. 278 (Law Div. 2008), aff'd o.b. sub nom. DeBoard v. Wyeth, Inc., 422 N.J. Super. 360 (App. Div. 

2011), certif. den. 211 N.J. 274 (2012). 

4.2.7. Intentional torts. 

Malicious prosecution; malicious abuse of process. And see, distinguishing between causes of action for 

malicious abuse of process and malicious use of process, Pitcock v. Kasowitz, Benson, 426 N.J. Super. 

582, 585 n. 1 (App. Div. 2012) ("a tort action based on the alleged malicious filing of civil litigation is 

called `malicious use of process'"). 

4.2.8. Negligence. 

a. General principles. Duty of care. The issue of whether a defendant owes a duty of care to the plaintiff 

is a question of law to be decided by the court, which must determine, as a matter of fairness and policy, 

whether there exists, in the particular circumstances, a duty to exercise reasonable care to avoid the foreseeable 

risk of injury to another. Although foreseeability may be the key to reasonableness, foreseeability 

alone, in the absence of consideration of other factors such as public policy and questions of fairness, is 

not dispositive. See also Tarabokia v. Structure Tone, 429 N.J. Super. 103, 113-114 (App. Div. 2012). Personal 

injury. B.R. v. Vaughan, 427 N.J. Super. 487, 491 (Law Div. 2012) (State agencies have no common 

law or statutory duty to inform a long-term partner about a person's positive HIV status). Property liability. 

Kandrac v. Marrazzo's Market, 429 N.J. Super. 79, 90-91 (App. Div. 2012) (no duty imposed upon 

commercial tenant who had no control or contractual responsibility to maintain parking lot shared with 

other tenants); Nielsen v. Wal-Mart Store No. 2171, 429 N.J. Super. 251, 258-260, 264-265 (App. Div. 

2013) (commercial condominium unit owner had duty to warn contractor's employee of dangerous condition 

on sidewalk abutting unit that condominium developer had a contractual duty to maintain). 

b. Statutory or regulatory standard of conduct. A statute or regulation prescribing a standard of conduct 

may create a private cause of action, may only be evidential of negligence, or may be neither. It will be 

deemed to have impliedly created a private cause of action if a three-prong test is met, namely, whether 

18


the plaintiff is a member of the protected class, whether the Legislature has evinced an intention of creating 

a private right of action, and whether a private right of action is consistent with the legislative purpose. 

As to statutes and regulations held not to create a private cause of action, see Avis Budget Gp. v. 

City of Newark, 427 N.J. Super. 326, 334-336 (App. Div. 2012) (no private right of action under Anti- 

Head Tax Act, 49 U.S.C. § 40116). Even if a statute, regulation or ordinance does not support a civil 

cause of action, its prescribed standard of conduct may be regarded as evidence of breach of duty if plaintiff 

was a member of the class for whose benefit the standard was established. See Tarabokia v. Structure 

Tone, 429 N.J. Super. 103, 112, 120 (App. Div. 2012). Cf. Van Dunk v. Reckson Associates, 210 N.J. 449, 

469 (2012), OSHA citation for willful violation is only one factor among the totality of circumstances 

analysis for the intentional wrong exception to the worker's compensation statute. 

c. Professional malpractice. Medical, hospital and health professionals malpractice. The three basic theories 

of medical malpractice are negligence, lack of informed consent, and battery, and an action based on 

battery will not lie against a surgeon because he was assisted by a different physician than promised to the 

patient or expected by him. And see Newmark-Shortino v. Buna, 427 N.J. Super. 285, 303-305 (App. 

Div.), certif. den. 213 N.J. 45 (2013), noting the three theories and discussing negligence and lack of 

informed consent. As to the standard of care with respect to a physician's duty to report suspected child 

abuse, see L.A. v. DYFS, 429 N.J. Super. 48, 56-59 (App. Div. 2012). As to a claim of lack of informed 

consent and a physician's duty of disclosure as measured by the standard of the prudent patient and the 

materiality of the risk, see generally, Newmark-Shortino v. Buna, 427 N.J. Super. 285, 304-309 (App. 

Div.), certif. den. 213 N.J. 45 (2013) (discussing claim of lack of informed consent). f. Wrongful death/ 

wrongful life; preconception tort. An heir's loss of favorable tax benefits due to premature death of decedent 

is recoverable under Wrongful Death Act. Beim v. Hulfish, 427 N.J. Super. 560 (App. Div.), certif. 

granted 212 N.J. 462 (2012). 

4.2.9. Emotional distress. 

And see Stancil v. ACE USA, 211 N.J. 276, 291-292 (2012), refusing to recognize new cause of action 

against employer's workers' compensation carrier for additional injuries caused by carrier's failure to 

comply with court ordered payment. 

4.2.10. Spoliation of evidence. 

And see, as to claim of alteration of records in medical malpractice case, Newmark-Shortino v. Buna, 427 

N.J. Super. 285, 311-312 (App. Div. 2012), certif. den. 213 N.J. 45 (2013). 

4.2.15. Constitutional claims. 

As to claims based on Article I, paragraph 2(a) of the State Constitution, see Gonzalez v. State Apportionment, 

428 N.J. Super. 333, 371-372 (App. Div. 2012), certif. den. 213 N.J. 45 (2013), holding that there is 

no private right of action with respect to that provision's affirmation of the principle that the people may 

change their form of government through constitutional amendment. 

RULE 4:7. COUNTERCLAIM AND CROSS-CLAIM 

4:7-5. Cross-Claim Against Co-Party; Claim for Contribution or Claim for Indemnity 

COMMENT 

1. Scope. 

Paragraph (a) of this rule addresses cross-claims by one party against another, and paragraph (b) 

addresses all claims, however made, by any party against any other party for contribution or indemnity. 

Paragraph (c) prescribes a 90-day period for the assertion of a cross-claim as of right. Note, however, that 

when the cross-claim is an action in lieu of prerogative writs, the 45-day limit for bringing an action 

19


under R. 4:69-6(a) applies. Burns v. Hoboken Rent Leveling, 429 N.J. Super. 435, 447-448 (App. Div. 

2013). 

COMMENT 

4. Indemnity. 

4.2. Contractual indemnification. 


Although contracts of indemnity generally are construed under the same rules of construction as other 

contracts, ambiguities found in indemnifications are construed strictly against the indemnitee. Sayles v. G 

& G Hotels, Inc., 429 N.J. Super. 266, 270 (App. Div. 2013) 

RULE 4:9. AMENDED AND SUPPLEMENTAL PLEADINGS 

4:9-3. When Amendments Relate Back 

COMMENT 

4. Misidentified Parties. 

While the rule, by its terms, addresses the change in identity of the party against whom the claim is made, 

it has also been applied to an amendment re-identifying the party making the claim provided all of the 

conditions of the rule are satisfied. See also Prime Accounting v. Carney's Pt., 212 N.J. 493, 513-515 

(2013) (permitting amendment of tax appeal complaint to name the actual taxpayer as plaintiff without 

defeating tax court's jurisdiction when misdesignation was not intentional and did not prejudice the public 

entity). 

RULE 4:10. PRETRIAL DISCOVERY 

4:10-2. Scope of Discovery; Treating Physician 

COMMENT 

1. Paragraph (a); Purpose and Relevance; Generally. 

In light of the uniformity and predictability purposes, parties may not independently choose the order or 

timing of rule-mandated discovery to be produced. Herrick v. Wilson, 429 N.J. Super. 402, 406 (Law Div. 

2011). 

COMMENT 

2. Paragraph (a); Privilege. 

2.2. Particular privileges. 

2.2.10. Deliberative privilege. 

Governmental documents and other materials not within the Right to Know law, now the Open Public 

Records Act, or common law right to know, see Comment 9.3 on this rule, may be subject to protection 

under the so-called deliberative process privilege, at least in part codified by N.J.S. 2A:84A-27 and 

N.J.R.E. 515. See generally Caliendo v. Velez, 427 N.J. Super. 210, 215-216 (App. Div.), certif. den. 212 

N.J. 463 (2012). Akin to the policy of the deliberative privilege is the confidentiality of the closed executive 

session held under the Open Public Meetings Act. And see McGovern v. Rutgers, 211 N.J. 94, 111- 

114 (2012) (finding deficiency in meeting notice and other aspects of closed board meeting, but finding 

that the Act provided no remedy under the facts of the case). 

2.2.11. Self-critical analysis. 

Although not statutory, the courts have recognized, as a matter of public policy, a privilege for materials 

constituting self-critical analysis. See generally C.A. ex rel. v. Bentolila, 428 N.J. Super. 115, 148 (App. 

Div. 2012) (addressing the interplay between the confidentiality provisions of the Patient Safety Act and 

the privilege for self critical analysis under Christy v. Salem, 366 N.J. Super. 535, 542 (App. Div. 2004)). 

20


COMMENT 

4. Paragraph (c); Trial Preparation, Materials; Work-Product Privilege. 

4.2. Materials prepared in anticipation of trial. 

4.2.2. Other trial preparation materials. 

Diaries kept by clients on their attorneys' advice for litigation purposes have been held subject to the work 

product privilege. See, e.g., Roe v. Roe, 253 N.J. Super. 418 (App. Div. 1992) (diary kept by matrimonial 

litigant on attorney's advice subject to work product privilege). 

COMMENT 

9. Special Discoverability Problems. 

9.3. Discovery from public bodies; right to know. 

9.3.1. Access to government records. 

Discovery of the records of public entities may be obtained either under the common-law right to know or 

the current statute, the Open Public Records Act (OPRA), N.J.S. 47:1A-1 et seq, which replaced the 

former Right to Know Law. And see Sussex Commons Assoc. v. Rutgers, 210 N.J. 531, 544, 548 

(2012)(OPRA applies to Rutgers University law schools, which are public agencies, but the Act does not 

apply to records related to cases at public law school clinics). 

Open Public Records Act. OPRA provides for an election between a judicial remedy and an administrative 

remedy accorded by the Government Records Council (GRC), whose determinations are reviewable 

by the Appellate Division. Note, however, that the authority of the GRC extends only to resolving OPRA 

claims and not common law claims for record access. See Ciesla v. N.J. Dept. of Health, 429 N.J. Super. 

127, 133 (App. Div. 2012). A request under OPRA is required to be in writing. The statute also requires 

the request to be specific. See also Burke v. Brandes, 429 N.J. Super. 169, 174-177 (App. Div. 2012) 

(request for all records/correspondence between two government entities for one subject matter is sufficiently 

specific). Privileged materials and attorney work product are exempt under OPRA. A mere assertion 

of a privilege, however, is not sufficient to trigger exemption. Burke v. Brandes, 429 N.J. Super. 169, 

178 (App. Div. 2012). OPRA provides an unqualified exemption for deliberative material. Ciesla v. N.J. 

Dept. of Health, 429 N.J. Super. 127, 143-144 (App. Div. 2012) (protected deliberative material includes 

a draft report by the Department of Health staff concerning a hospital's certificate of need). Although Rutgers 

University's law schools are public agencies subject to OPRA, "cases at public law school clinics are 

not subject to OPRA," including "client-related documents or clinical case files" and "requests for information 

about the development and management of litigation." Sussex Commons Assoc. v. Rutgers, 210 

N.J. 531, 548 (2012). 

Common law right to know. It has been held that the common law right applies to records made by a public 

official in the exercise of his or her public function, either because the record was required or directed 

by law to be made or kept, or because it was filed in a public office. And see Sussex Commons Assoc. v. 

Rutgers, 210 N.J. 531, 549 (2012) (clinical professors at public law schools do not act as public officials 

when representing private clients and thus the records they generate in that capacity are not subject to the 

common law right of access). OPRA expressly provides that it is not to be construed as affecting the common 

law right of access. Thus, unfiled discovery, although not subject to disclosure under OPRA, is eligible 

for release under the common-law balancing test. See also Ciesla v. N.J. Dept. of Health, 429 N.J. 

Super. 127, 133 (App. Div. 2012), recognizing that, although deliberative materials may be privileged and 

exempt under OPRA, they nonetheless remain subject to possible release under the common law right of 

access if the claimant's legitimate interest outweighs the government's interest in confidentiality (common 

law right does not extend to a draft report pertaining to a hospital's certificate of need that is prepared 

by staff of the Department of Health). 

21


RULE 4:17. INTERROGATORIES TO PARTIES 

4:17-1. Service, Scope of Interrogatories 

COMMENT 

2. Paragraph (b); Uniform Interrogatories. 

Because this rule excepts only privileged material required to be produced by the Uniform Interrogatories, 

a party may not otherwise unilaterally refuse to produce material required by an Interrogatory. Herrick 

v. Wilson, 429 N.J. Super. 402, 404 (Law Div. 2011). 

RULE 4:21A. ARBITRATION OF CERTAIN CIVIL ACTIONS 

4:21A-9. Parties in Default. 

COMMENT 

10. R. 4:21A-9; Parties in Default. 

This rule contains an inadvertent reference to Appendix XXVII. That form was not promulgated and does 

not appear under that Appendix. In a recent Notice to the Bar, the director of the Administrative Office of 

the Courts advised that the reference will be corrected in a future rule amendment. In the interim, practitioners 

are advised to utilize the form of notice that accompanied the director's Notice. See Notice to the 

Bar dated November 26, 2012. All other aspects of the rule should be followed. 

RULE 4:23. FAILURE TO MAKE DISCOVERY; SANCTIONS 

4:23-1. Motion for Order Compelling Discovery 

COMMENT 

3. Applicability. 

3.3. Relief against movant. 

Rule 4:23-1(c) provides additionally for sanctions in the form of "reasonable expenses, including attorney's 

fees," against those who bring a discovery motion that is not substantially justified unless circumstances 

make such an award unjust. See discussion in Segal v. Lynch, 211 N.J. 230, 256-257 (2012), 

emphasizing the limited scope of the rule. 

4:26-1. Real Party in Interest 

RULE 4:26. PARTIES PLAINTIFF AND DEFENDANT 

COMMENT 

2. Real Party in Interest. 


The real party in interest rule is ordinarily determinative of standing to prosecute an action. Standing has 

been held to be an element of justiciability, neither subject to waiver nor conferrable by consent. And see 

Deutsche Bank Nat. Trust v. Russo, 429 N.J. Super. 91, 101-102 (App. Div. 2012) (standing is an element 

of justiciability, not jurisdiction). 

4:35-1. Demand for Jury Trial 

RULE 4:35. TRIAL BY JURY OR BY THE COURT 

COMMENT 

2. Right to Trial by Jury. 


As to the right to trial by jury generally, see also Jersey Cent. Power v. Melcar Util., 212 N.J. 576, 589- 

594 (2013). 

22


RULE 4:37. DISMISSAL OF ACTIONS 

4:37-1. Voluntary Dismissal; Effect Thereof 

COMMENT 

1. Paragraph (a); By Plaintiff, By Stipulation. 


In multiple party litigation, the voluntary dismissal of a constituent claim requires the consent only of 

those parties directly involved in that claim. See also Burns v. Hoboken Rent Leveling, 429 N.J. Super. 

435, 444 (App. Div. 2013), holding that a stipulation of dismissal with or without prejudice between two 

parties also required second defendant's consent when that defendant, who was an interested party with 

respect to the dismissed claims, had answered the complaint before the court entered the stipulation. 

COMMENT 

2. Paragraph (b); By Order of Court. 


The trial court needs to determine whether the dismissal should be with prejudice and if not, the conditions 

of dismissal, if any, Note that a voluntary dismissal with prejudice obviates many of the concerns 

with regard to prejudice to defendant as well as with regard to concerns about plaintiff's gamesmanship, 

particularly when defendant is not deprived of any legitimate claims thereby. Burns v. Hoboken Rent Leveling, 

429 N.J. Super. 435, 445-447 (App. Div. 2013). 

4:37-2. Involuntary Dismissal; Effect Thereof 

COMMENT 

1. Paragraph (a); For Failure to Comply with Rule or Order. 

Of course, an unserved defendant presumably will lack the requisite knowledge to seek a dismissal pursuant 

to this paragraph of the rule. R. 1:13-7, however, provides for administrative dismissal when plaintiff 

fails to provide the court with either proof or acknowledgment of service. That rule provides as well for 

reinstatement of actions dismissed without prejudice. See further Comment 1.2 to R. 1:13-7. And see R. 

4:23-5 and Comments thereto, providing for dismissals for failure to meet discovery demands. 

COMMENT 

2. Paragraph (b); At Trial_Generally. 


The judicial function on a motion for an involuntary dismissal under this rule is quite a mechanical one. 

The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but 

only with its existence, viewed most favorably to the party opposing the motion." See generally Fox v. 

Millman, 210 N.J. 401, 428 (2012); Filgueiras v. Newark Pub. Schools, 426 N.J. Super. 449, 455-456 

(App. Div.), certif. den. 212 N.J. 460 (2012); N.J. DYFS v. C.H., 428 N.J. Super. 40, 67-68 (App. Div. 

2012); Mayer v. Once Upon A Rose, Inc., 429 N.J. Super. 365, 373 (App. Div. 2013). 

2.3. Expert testimony. 

It is only in the extraordinary case that either the doctrine of common knowledge or res ipsa will permit 

the action to proceed without expert testimony as to the appropriate standard of conduct and the deviation 

therefrom. See also Mayer v. Once Upon A Rose, Inc., 429 N.J. Super. 365, 376-377 (App. Div. 2013) 

(res ipsa inference allowed without expert testimony to explain how defendant shattered a vase). 

RULE 4:38A. CENTRALIZED MANAGEMENT OF MULTICOUNTY LITIGATION 

COMMENT 

For guidance on multicounty litigation see Administrative Directive #8-12 (Multicounty Litigation 

Guidelines), and the Non-Asbestos Mass Tort Resource Book available in the online edition of this book. 

23


4:39-1. Special Verdicts 

RULE 4:39. VERDICTS 

COMMENT 

2. Framing the Questions. 

2.2. Improper and omitted questions. 

An imprecise interrogatory may not warrant reversal in the context of adequate jury instructions. See, 

however, Ponzo v. Pelle, 166 N.J. 481, 491-492 (2001), reversing the judgment below where the single 

jury interrogatory was misleading and the confusion was uncured by the charge. Compare Ponzo with 

Newmark-Shortino v. Buna, 427 N.J. Super. 285, 310-311 (App. Div. 2012), certif. den. 213 N.J. 45 

(2013) (holding that there was no need to separate a single jury interrogatory into multiple interrogatories 

for plaintiffs' allegations of deviations from the standard of care in a medical malpractice case). 

RULE 4:40. MOTION FOR JUDGMENT 

4:40-1. Motion for Judgment at Trial; 

4:40-2. Reservation of Decision on Motion; Motion for Judgment Notwithstanding the Verdict. 

COMMENT 


The standard for determining both a motion for judgment under R. 4:40-1 and a motion for judgment notwithstanding 

the verdict under R. 4:40-2 is the same as that governing the determination of a motion for 

involuntary dismissal under R. 4:37-2(b), namely, the court must accept as true all the evidence which 

supports the position of the party defending against the motion and must accord that party the benefit of 

all legitimate inferences which can be deduced therefrom. Thus, if reasonable minds could differ, the 

motion must be denied. See also Filgueiras v. Newark Pub. Schools, 426 N.J. Super. 449, 455-456 (App. 

Div.), certif. den. 212 N.J. 460 (2012); Newmark-Shortino v. Buna, 427 N.J. Super. 285, 313 (App. Div. 

2012), certif. den. 213 N.J. 45 (2013); N.J. DYFS v. C.H., 428 N.J. Super. 40, 59-60 (App. Div. 2012). 

4:42-9. Attorney's Fees 

RULE 4:42. JUDGMENT; ORDERS; DAMAGES; COSTS 

COMMENT 

2. Paragraph (a); Actions in Which Fee is Allowable. 

2.8. Statutory authorization. 


And see, generally elucidating the methodology of the lodestar fee adjusted upward or downward, Stoney 

v. Maple Shade Tp., 426 N.J. Super. 297, 318-320 (App. Div. 2012) (advising remand court to consider 

whether the case was brought for the public good, relying on the fee shifting statute; lodestar amount may 

be reduced if the level of success achieved in the litigation is limited in comparison to the relief sought). 

2.8.2. Particular state statutes. 

Eminent Domain (N.J.S. 20:3-26): Reasonable fees of the condemnee, including pre-action fees, actually 

incurred as a direct result of the public entity's formal action targeting the property are reimbursable once 

a condemnation complaint is filed and later abandoned. See also Hoagland v. City of Long Branch, 428 

N.J. Super. 321, 326-327, 332 (App. Div. 2012), rejecting homeowner's request for additional compensation 

beyond litigation fees after withdrawal of condemnation action. 

Employee Indemnity: See, generally, Castriotta v. Board of Educ., 427 N.J. Super. 592, 603-604 (App. 

Div. 2012) (school board member entitled to indemnification in successfully defending against censure 

resolution). 

24


Frivolous claims (N.J.S. 2A:15-59.1): See In re Estate of Ehrlich, 427 N.J. Super. 64, 77-78 (App. Div. 

2012), certif. den. 213 N.J. 46 (2013) (affirming denial of sanctions when plaintiff's claim had reasonable 

basis in law and equity). 

COMMENT 

6. Attorney liens, Quantum Meruit Recovery. 

6.2. Retaining lien. 

Attorney's common law retaining liens were prohibited by amendment of RPC 1.16(d), effective April 1, 

2013. 

4:43-1. Entry of Default 

RULE 4:43. DEFAULT 

COMMENT 


The rule requires the attorney obtaining entry of default to serve a copy of the default papers upon the 

defendant by ordinary mail. While the rule does not in terms so provide, the service must be made 

promptly upon entry. When entry of default is sought more than six months after the actual default, the 

time for the required notice to the party in default conforms to the usual motion notice period prescribed 

by R. 1:6-3, presently 16 days before the return date. 

COMMENT 

2. Construction and Application. 

A failure to comply with any court order will not be sufficient for entry of default; the court order must be 

"rooted in a `failure to defend.'" DYFS v. M.G., 427 N.J. Super. 154, 168-169 (App. Div. 2012) (failure to 

fulfill order's condition of rectifying homelessness did not result in a failure to defend sufficient to provide 

a basis for entry of default). 

4:43-2. Final Judgment by Default 

COMMENT 

1. Paragraph (a); Entry of Default Judgment by the Clerk. 

This paragraph of the rule specifically and clearly delineates those conditions pursuant to which the clerk 

may enter default judgment without judicial review or approval. This paragraph is base on the fact that the 

defendant has been sent a copy of the entry of the default, see R. 4:43-1 and Comment 1, thereto. It also 

reflects the fact that entry of judgment is ministerial and not reasonably subject to dispute or argument. 

Accordingly the request for entry of judgment may be accomplished without notice, except as noted by 

the last sentence of the paragraph. That sentence requires that, if an application for entry of a default 

judgment is made after the expiration of six months from the entry of default, notice must be given to the 

defendant by ordinary mail. It is not entirely clear how that provision is meant to interact with paragraph 

(d) of this rule and R. 1:13-7, which require the court to dismiss the action if application for entry of a 

default judgment is not made within six months. 

COMMENT 

2. Paragraph (b); Entry of Default Judgment of the Court. 

2.1. Notice. 

As distinct from paragraph (a), see Comment 1 above, this paragraph of the rule requires formal notice of 

motion to the defaulting defendant or representative appearing for the defaulting defendant and provides 

for the mode and conditions of service. Although the rule no longer mandates notice to the representative 

when there is one and, by its terms, it allows notice to either the defendant or representative, the reasons 

for noticing defendant's attorney rather than defendant are clearly stated in Rosenberg v. Bunce, 214 N.J. 

Super. 300, 305-306 (App. Div. 1986) (plaintiff served his application for entry of a default judgment 

upon defendant personally rather than upon defendant's counsel who had appeared in the action; it may 

25


be reasonably inferred that this approach delayed the response of defendant's counsel to the application 

for entry of a default judgment). 

Notice to the defaulting party is also required when requesting a proof hearing, which may also be conducted 

by the court on its own motion. The request need not be by formal motion; a request by letter will 

suffice. 

2.2. Required proofs; mode of proof. 

This paragraph of the rule makes clear that a proof hearing may be ordered by the court on its own motion 

or on request by a party on notice to the defaulting defendant or defendant's representative. See Comment 

2.1, supra. 

COMMENT 

4. Paragraph (d); Failure to Apply for Judgment Within Four Months. 

Following the general format of R. 1:13-7 (dismissal for failure to prosecute), the rule requires the court 

to notice a plaintiff after four months have elapsed from entry of default that the action will be dismissed 

after an additional sixty days unless within that time plaintiff seeks a judgment by default. Note that, 

although this rule is silent in this respect, R. 1:13-7 specifies that in general equity matters the time periods 

are two months and thirty days respectively. 

RULE 4:46. SUMMARY JUDGMENT 

4:46-2. Motion and Proceedings Thereon 

COMMENT 

2. Paragraph (c); Standards for Grant of Motion. 


Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520 (1995), while not abandoning the earlier judicial 

formulation, linked the summary judgment standard more explicitly to R. 4:37-2(b). Thus, the standard is 

now expressed in terms of a prima facie case or defense and the movant is entitled to judgment if, on the 

full motion record, the adverse party, who is entitled to have the facts and inferences viewed most favorably 

to it, has not demonstrated the existence of a dispute the resolution of which in his favor will ultimately 

entitle him to judgment. See also Memorial Prop. v. Zurich Am. Ins., 210 N.J. 512, 524 (2012); 

A.D.P. v. ExxonMobil Research, 428 N.J. Super. 518, 531 (App. Div. 2012); Schools Dev. Auth. v. Marcantuone, 

428 N.J. Super. 546, 555 (App. Div. 2012); Crystal Ice-Bridge v. Bridgeton, 428 N.J. Super. 

576, 580 (App. Div. 2012); L.A. v. DYFS, 429 N.J. Super. 48, 49 (App. Div. 2012). 

2.2. Inadequacy of respondent's resistance to summary judgment motion. 

Clearly, bare conclusions in the pleadings without factual support in affidavits will not defeat a motion for 

summary judgment. And see Mangual v. Berezinsky, 428 N.J. Super. 299, 312-313 (App. Div. 2012) 

(mere denial of negligence not sufficient to defeat motion when plaintiffs had established prima facie 

case). 

2.3. Denial of summary judgment motion. 

2.3.2. Dispute of fact; credibility issues. 

Obviously, the motion for summary judgment should be denied where determination of material disputed 

facts depends primarily on credibility evaluations or where the existence of a genuine issue of material 

fact appears from the discovery materials or from the pleadings and affidavits on the motion. Mangual v. 

Berezinsky, 428 N.J. Super. 299, 308 (App. Div. 2012). See also L.A. v. DYFS, 429 N.J. Super. 48, 59-60 

(App. Div. 2012), holding that summary judgment on a medical malpractice claim should have been 

denied when a reasonable jury could have found that the physician breached the standard of care for the 

reporting requirements of suspected child abuse. 

26


COMMENT 

3. Cross-Motions. 

Cross-motions for summary judgment do not preclude the existence of fact issues. See also Mangual v. 

Berezinsky, 428 N.J. Super. 299, 307 n. 1 (App. Div. 2012). 

COMMENT 

5. Particular Causes of Actions and Issues. 

Contract interpretation. An issue regarding interpretation of a contract clause presents a purely legal question 

that is particularly suitable for decision on a motion for summary judgment. See Khandelwal v. Zurich 

Ins. Co., 427 N.J. Super. 577, 585 (App. Div. 2012), certif. den. 212 N.J. 430 (2012). 

Malpractice. Summary judgment was not appropriate in a medical malpractice case when a reasonable 

jury could have found that the physician breached the standard of care for the reporting requirements of 

suspected child abuse. See L.A. v. DYFS, 429 N.J. Super. 48, 59-60 (App. Div. 2012). 

4:50-1. Grounds of Motion 

RULE 4:50. RELIEF FROM JUDGMENT OR ORDER 

COMMENT 


Except for motions for relief from default judgments which are liberally viewed, see Comment 4 infra, a 

motion for relief from judgment based on any one of the six specified grounds should be granted sparingly 

and all motions for relief are addressed to the sound discretion of the trial court, whose determination 

will be left undisturbed unless it results from a clear abuse of discretion. Deutsche Bank Nat. Trust v. 

Russo, 429 N.J. Super. 91, 98 (App. Div. 2012). 

COMMENT 

4. Default Judgments. 


As to the requirement of a meritorious defense, see Deutsche Bank Nat. Trust v. Russo, 429 N.J. Super. 

91, 98, 101 (App. Div. 2012) (lack of standing would not constitute a meritorious defense in post-judgment 

context due to defendant's unexcused, years-long delay in asserting the defense). 

COMMENT 

5. Grounds for Relief Specified by the Rule. 

5.1. Subsection (a); mistake, inadvertence, surprise, or excusable neglect. 

5.1.2. Excusable neglect. 

But see, finding the circumstances not to be excusable neglect, Deutsche Bank Nat. Trust v. Russo, 429 

N.J. Super. 91, 98-99 (App. Div. 2012) (excusable neglect does not include unsupported statement that 

defendant believed, based on the loan servicer's representations, that there was no need to answer or 

defend the foreclosure action). 

5.4 Subsection (d); void judgment or order. 

5.4.1. Generally. 

The mere fact that a judgment is void within the intendment of subsection (d) has been held not to automatically 

entitle the defendant to relief pursuant to the rule. See also Deutsche Bank Trust v. Angeles, 

428 N.J. Super. 315, 319 (App. Div. 2012), finding no abuse of discretion in denying motion for relief in 

foreclosure action when homeowner had waited two years to challenge the mortgagor's standing. A foreclosure 

judgment obtained by a party lacking standing is not "void" within the meaning of subsection (d), 

see Deutsche Bank Nat. Trust v. Russo, 429 N.J. Super. 91, 101 (App. Div. 2012). 

4:50-2. Time of Motion 

27


COMMENT 

1. Generally. 

The basic scheme of the rule is to require that a R. 4:50-1 motion be made within a reasonable time under 

the circumstances, and to impose an outer limit of one year on motions made pursuant to subsection (a) 

mistake, inadvertence, surprise, or excusable neglect; subsection (b) newly discovered evidence; and subsection 

(c) fraud, misrepresentation, or misconduct. See Deutsche Bank Nat. Trust v. Russo, 429 N.J. 

Super. 91, 99 (App. Div. 2012). 

RULE 4:52. INJUNCTIONS 

4:52-1. Temporary Restraint and Interlocutory Injunction_Application on Filing of Complaint 

COMMENT 

3. Standards for Issuance. 

3.1. General standards. 

See, generally, restating the standards for grant of a preliminary injunction, Merrill Lynch v. Cantone 

Research, 427 N.J. Super. 45, 63 (App. Div.), certif. den. 212 N.J. 460 (2012). 

3.3. Specific enjoinable actions and conduct. 

3.3.9. Access discrimination. 

As to the availability of injunctive relief following a finding of access discrimination under federal or 

state law, see Stoney v. Maple Shade Tp., 426 N.J. Super. 297, 307-317 (App. Div. 2012). 

4:59-1. Execution 

RULE 4:59. PROCESS TO ENFORCE JUDGMENTS 

COMMENT 

1. Paragraph (a); Execution Generally. 

1.5. Rights of debtors. 

As to the right of a judgment debtor to record cancellation of a judgment after he has been discharged in 

bankruptcy from the underlying debt, see Gaskill v. Citi Mortg., Inc., 428 N.J. Super. 234, 240-241 (App. 

Div. 2012). 

RULE 4:64. FORECLOSURE OF MORTGAGES, CONDOMINIUM ASSOCIATION LIENS AND TAX SALE 

CERTIFICATES 

4:64-1. Foreclosure Complaint, Uncontested Judgment Other Than In Rem Tax Foreclosures 

COMMENT 

2. Paragraph (b); Contents of Complaint. 

Note that the requirements of this rule and R. 4:64-2 must be followed for residential foreclosure actions 

even when the mortgagee has abandoned the home. Sturdy Savings Bank v. Roberts, 427 N.J. Super. 27, 

43 (Ch. Div. 2012). 

COMMENT 

4. Paragraph (d); Procedure to Enter Judgment. 

The rules were relaxed by order of October 3, 2012 to require that a request for mediation be served by 

the date of entry of final judgment, absent exceptional circumstances. This provision was revised by order 

effective April 1, 2013 to provide that the mediation documents served with the summons and complaint 

notify defendants that mediation may be requested up to 60 days after the service of the summons and 

complaint and if not requested within that time may not be requested absent exceptional circumstances. 

4.2. Fair Foreclosure Act. The Clerk's office has developed internal procedures consistent with the Fair 

Foreclosure Act, N.J.S. 2A:50-53 et seq. adopted in 1995. Note, however, that the Act, which generally 

applies to residential mortgages, does not apply when the mortgagee has abandoned the house as of the 

date the foreclosure complaint was filed. Sturdy Savings Bank v. Roberts, 427 N.J. Super. 27, 32, 38-39 

(Ch. Div. 2012). 

28


4:64-2. Proof; Affidavit 

COMMENT 

1. Submission of Proofs. 

Note that the requirements of this rule and R. 4:64-1 must be followed for residential foreclosure actions 

even when the mortgagee has abandoned the home. Sturdy Savings Bank v. Roberts, 427 N.J. Super. 27, 

43 (Ch. Div. 2012). 

RULE 4:69. ACTIONS IN LIEU OF PREROGATIVE WRITS 

COMMENT 

1. Scope; Applicability; General Principles. 

Appeals from State agency action must be taken to the Appellate Division pursuant to R. 2:2-3(a)(2). 

Hawk v. New Jersey Inst. of Tech., 428 N.J. Super. 562, 570 (App. Div. 2012). 

4:69-4. Filing and Management of Actions in Lieu of Prerogative Writs. 

COMMENT 

5. R. 4:69-4; Filing and Management of Actions in Lieu of Prerogative Writs. 

5.4. Presumption of validity. 

As to the presumption of validity of municipal action and the viability of municipal actions neither arbitrary, 

capricious, nor unreasonable, see Dock St. Seafood v. Wildwood, 427 N.J. Super. 189, 201 (Law 

Div.), aff'd 425 N.J. Super. 590 (App. Div. 2012). 

.4:69-5; Exhaustion of Remedies. 

COMMENT 

6. R. 4:69-5; Exhaustion of Remedies. 

See further discussing similar exhaustion of remedies issues in the administrative appeal context Comment 

3.5. on R. 2:2-3. Relief from the exhaustion requirement is by no means automatic. Thus the mere 

allegation that a constitutional issue is involved will not relieve plaintiff of the exhaustion requirement. 

But see Mullen v. Ippolito Corp., 428 N.J. Super. 85, 104-106 (App. Div. 2012), allowing relief as to all 

issues in a case not involving constitutional issues and in which there was a suggestion of irreparable 

harm with regard to only one issue but in which "an amorphous history of municipal inaction" left plaintiff 

"without a realistic alternative form of administrative relief." 

R. 4:69-6; Limitation on Bringing Certain Actions. 

COMMENT 

7. R. 4:69-6; Limitation on Bringing Certain Actions. 

7.1. Paragraph (a); general limitation. 

7.1.1. Accrual; applicability. 

Cross-claims that take the form of actions in lieu of prerogative writs are also subject to this rule's 45-day 

limit rather than the 90 days provided for by R. 4:7-5. Burns v. Hoboken Rent Leveling, 429 N.J. Super. 

435, 447-448 (App. Div. 2013). 

7.3. Paragraph (c); relaxation. 

Paragraph (c) of the rule is intended to restate in the form of a generalized standard, decisional exceptions 

which had already been engrafted upon the rule. These exceptions include (1) substantial and novel constitutional 

questions and (2) informal or ex parte determinations made by administrative officials which 

do not involve "a sufficient crystallization of a dispute along firm lines to call forth the policy of repose" 

and where the right to relief depends upon determination of a legal question; and (3) an important public 

rather than a private interest which requires adjudication or clarification. Nevertheless, these grounds for 

relaxation are not exclusive, relaxation depending on all relevant equitable considerations under the circumstances. 

See Mullen v. Ippolito Corp., 428 N.J. Super. 85, 106 (App. Div. 2012), relaxing the multiyear 

delay in bringing suit due in part to the novel circumstances of the case. 

29


4:73-1. Complaint 

RULE 4:73. CONDEMNATION; APPEALS FROM ASSESSMENTS 

COMMENT 

2. Pre-Litigation Obligations. 

As to the general obligation of government to deal fairly with condemnees and to comply strictly with all 

condemnation requirements, see Merchantville v. Malik & Son, 429 N.J. Super. 416, 426, 429-431 (App. 

Div. 2013). The condemnee is under an obligation as well to provide any information it believes is lacking 

in the condemnor's appraisal so that there might be a good-faith negotiation. Merchantvill, 429 N.J. 

Super. at 429-430 (mere rejection of offer not sufficient to initiate negotiation). As to the identity of the 

condemnee to whom the condemnor owes pre-litigation disclosure and negotiation, see also Merchantville, 

429 N.J. Super. at 428 (condemnor only had legal obligation to negotiate with record owner of 

property, not with a lien holder). 

COMMENT 

5. Inverse Condemnation. 


The property owner must establish a de facto taking as a result of government action that has destroyed all 

beneficial use of the property. Dock St. Seafood v. Wildwood, 427 N.J. Super. 189, 202 (Law Div.), aff'd 

425 N.J. Super. 590 (App. Div. 2012). 

5.2. Regulatory taking. 

The rule has been modified, to take into consideration, among other factors, the property owner's "distinct 

investment-backed expectations," provided these expectations are reasonable. State ex rel. v. Marlton 

Plaza, 426 N.J. Super. 337, 353-357 (App. Div.), certif. den. 212 N.J. 463 (2012). (closure of one access 

driveway to shopping center did not constitute a regulatory taking). 

6. Abandonment of Condemnation. 

See also Hoagland v. City of Long Branch, 428 N.J. Super. 321, 323, 328-329 (App. Div. 2012) (rejecting 

argument that abandoned condemnation actions, in which no declarations of taking were filed, constituted 

a "temporary taking" of properties). 

4:73-4. Report of Commissioners; Service 

COMMENT 

3. Valuation Issues. 

3.2. Partial taking; severance and consequential damages. 

The two general rules for evaluating a partial taking are the before and after value of the property and, as 

an alternative, the value of the property taken plus the diminution in value of the remainder. See State ex 

rel. v. Marlton Plaza, 426 N.J. Super. 337, 357 (App. Div.), certif. den. 212 N.J. 463 (2012). 

3.3. Loss of access. State ex rel. v. Marlton Plaza, 426 N.J. Super. 337, 355-357 (App. Div.), certif. den. 

212 N.J. 463 (2012) (closing of access driveway to shopping center was not a regulatory taking when 

property still had reasonable highway access). 

3.5. Contaminated property. 

With respect to the special problem of valuation by the condemnor of contaminated property, the 

Supreme Court has held that the property is to be evaluated as if remediated. The condemnor's deposit 

into court of that amount is then regarded as a trust-escrow, and the condemnor is able to withhold that 

portion required to remediate from the condemnee's withdrawal, the amount thereof to be determined by 

hearing if the parties are unable to agree. See New Brunswick Hous. Auth. v. Suydam Investors, 177 N.J. 

2 (2003). See also Paulsboro v. Essex Chemical, 427 N.J. Super. 123, 126 (App. Div.), certif. den. 212 

N.J. 460 (2012) (Suydam methodology does not apply in action for property containing a landfill closed 

with DEP approval). 

30


RULE 4:74. SPECIAL PROCEEDINGS IN THE SUPERIOR COURT, LAW DIVISION 

4:74-7. Civil Commitment - Adults 

COMMENT 

7. Paragraph (f); Final Order of Commitment; Review. 

7.3. Commitment pursuant to the SVPA. 

7.3.1. Generally; due process. 

There is no constitutional right to self representation, however, at a civil commitment proceeding. In re 

Civil Commitment of D.Y., 426 N.J. Super. 436, 444-447 (App. Div. 2012). As to the statutory right to a 

hearing within 20 days of temporary commitment, see D.Y., 426 N.J. Super. at 447-448 (refusing to 

vacate commitment order when hearing occurred much later than 20 days after beginning of temporary 

commitment, in part because the court requested a competency evaluation, the State was not at fault, and 

the defendant was not unduly prejudiced). 

RULE 4:80. APPLICATION TO SURROGATE'S COURT FOR PROBATE OR ADMINISTRATION 

4:80-2. Proof of Will: Nonresident or Deceased Witnesses 

COMMENT 

3. Writings intended as wills. 

Under N.J.S. 3B:3-3 as amended in 2004, a writing that does not qualify as either a holographic or traditional 

will may nevertheless be admitted to probate if the proponent of the writing proves that the decedent 

intended the writing to constitute his will, a revocation of his will, an alteration of his will, or a 

revival of his revoked will. To establish intent, the proponent must prove by clear and convincing evidence 

that the decedent reviewed the writing and then gave his final assent to it. In re Probate of Will and 

Codicil of Macool, 416 N.J. Super. 298, 310 (App. Div. 2010). Note also that the Macool court stated in 

dicta that N.J.S. 3B:3-3 does not require the writing to be signed. See also In re Estate of Ehrlich, 427 N.J. 

Super. 64, 72 (App. Div.), certif. den. 213 N.J. 46 (2013), agreeing with Macool and holding explicitly 

that the proposed will does not need to be executed by the testator. 

RULE 4:89. DISTRIBUTION 

COMMENT 

1. Surviving Spouse Election. 

As to marital disqualification and issues respecting the valuation of the widow's or domestic partner's 

share, see In re Estate of Peck, 429 N.J. Super. 409, 414-415 (Ch. Div. 2012) (property located in foreign 

country and subject of foreign will is included in augmented estate for purpose of calculating the elective 

share). 

COMMENT 

2. Probable Intent. 

As to resort to the doctrine of probable intent to construe ambiguities in testamentary language, see 

Stephenson v. Spiegle, 429 N.J. Super. 378, 382-383 (App. Div. 2013). 

31

Peter G. Verniero is Chair of Sills Cummis & Gross’ Corporate Internal Investigations and Appellate Practice Groups. 

Since joining the Firm in September of 2004, he has worked on a number of significant matters. He has, for example, 

advised numerous entities in matters pending before various state and federal regulatory or law enforcement 

agencies, including the U.S. Attorney’s Office for the District of N.J. and the U.S. Department of Justice. He has 

conducted internal investigations of large, public companies, in addition to advising business entities on document 

retention policies and on the rules governing discovery of electronically stored information. 

Prior to joining the Firm, Mr. Verniero served in senior positions within the executive and judicial branches of state 

government. Appointed by Governor Christine Todd Whitman as her chief counsel, Mr. Verniero served in that 

capacity from January 1994 to February 1995, when he became the governor’s chief of staff. He remained in that 

position until July 1996, when he became Attorney General of New Jersey. As Attorney General, he personally 

argued cases before the New Jersey Supreme Court and the U.S. Court of Appeals for the Third Circuit. For 

example, in E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997), he argued successfully in defense of Megan’s Law, New 

Jersey’s sexual-offender notification statute. At the time of the court’s decision, it was the first federal appellate court 

ruling in the country upholding a state’s version of Megan’s Law. 

Mr. Verniero was appointed to the Supreme Court of New Jersey in 1999. As an associate justice for a five-year 

period from September 1999 to August 2004, Mr. Verniero authored and signed 124 judicial opinions touching on a 

wide array of civil and criminal areas, including employment, corporate, and constitutional law. For instance, he 

authored the Court’s opinion in In re PSE & G Shareholder Litigation, 173 N.J. 258 (2002), which articulated and 

applied a modified business judgment rule in upholding the dismissal of shareholder-derivative litigation. That opinion 

has been cited by numerous courts, including the U.S. Court of Appeals for the Second Circuit, the Court of Appeals 

for the State of California, and the Supreme Court of Minnesota. Other judicial opinions authored by Mr. Verniero 

have been cited by courts at different levels in Pennsylvania, Maryland, New Hampshire, Alabama, and Hawaii. 

In April 2010, Gann Law Books announced that Mr. Verniero will annotate and provide commentary to the Rules 

Governing the Courts of the State of New Jersey, a widely used reference guide for the legal profession. 

Mr. Verniero’s essays on legal and public policy issues also are widely published and have appeared in such 

publications as The Wall Street Journal, The New York Times, The Star-Ledger of Newark, The Philadelphia Inquirer, 

the Investor’s Business Daily, the New Jersey Law Journal, and The Metropolitan Corporate Counsel. He is the 

recipient of numerous honors and awards, including, most recently in 2004, the Gatekeeper Award in recognition of 

his “leadership in restoring public confidence in the law,” given by Common Good, a national bipartisan legal reform 

organization.

As a former state Attorney General, Mr. Verniero is a member of the Society of Attorneys General Emeriti and 

frequently attends meetings of the National Association of Attorneys General. At one national meeting, for example, 

he sat on a panel of current and former judges, offering insights on effective appellate advocacy before an audience 

of state solicitors and appellate chiefs. He similarly has lectured on effective appellate advocacy at meetings of 

various county bar associations in New Jersey. 

Mr. Verniero began his career as a Law Clerk to the Honorable Robert L. Clifford, New Jersey Supreme Court. He 

also was an Adjunct Assistant Professor at the County College of Morris, where he taught business law.

Raymond M. Brown, Esq. 

Partner, Litigation Department, Greenbaum Rowe Smith & Davis, LLP 

Chair, White Collar Defense & Corporate and International Human Rights Compliance Practice 

Group 

Practice Focus 

• Litigation, internal investigations, white collar criminal defense. 

Representative Matters 

• Mr. Brown has appeared in high profile trials such as the nine-month trial involving 

former Labor Secretary Raymond J. Donovan and the successful eight year defense of 

senior executives of a major multinational corporation charged with environmental 

violations. Mr. Brown has appeared in courts in 12 states and conducted investigations 

throughout the US as well as in Kenya, El Salvador, the Cayman Islands, Switzerland, the 

Bahamas, Colombia, and Sierra Leone. 

• Mr. Brown also has significant international experience qualifying as Counsel before the 

International Criminal Court in the Hague, and having served as Co-Lead Defense 

Counsel at the Special Court for Sierra Leone. 

Professional Activities / Honors 

• Host of the Emmy Award winning New Jersey Network Program "Due Process.” 

• Fellow of the American College of Trial Lawyers. 

• Fellow of the American Board of Criminal Lawyers. 

• Past president of the Association of Criminal Defense Lawyers of New Jersey. 

• Former member of the Board of Directors of the National Association of Criminal 

Defense Lawyers. 

• Selected as Best Lawyers' 2013 Woodbridge "Lawyer of the Year" in Criminal Defense: 

Non-White-Collar. 

• Selected for inclusion in The Best Lawyers in America since 1989 in the Corporate 

Governance and Compliance Law, Criminal Defense: Non-White-Collar, and Criminal 

Defense: White-Collar practice areas. 

• Listed in New Jersey Super Lawyers in the Criminal Defense: White Collar category. 

• Martindale-Hubbell Peer Review Rated AV® Preeminent. 

• Taught International Criminal Law in the Seton Hall/American University Program at 

Cairo, Egypt and at Seton Hall University’s School of Diplomacy and International 

Relations. 

• In addition to teaching International Criminal Law at Seton Hall University School of 

Law where he is a Visiting Professor and Research Scholar, he has taught Criminal Law, 

Criminal Procedure and Professional Responsibility. 

Publications / Articles / Presentations

• Panelist, "Emancipation and Affirmative Action: Is There Room for Both?" Middlesex 

County Bar Association Civil Rights Symposium, February 20, 2013. 

• Keynote Speaker, 16th Annual Franklin Township Dr. Martin Luther King, Jr. 

Community Breakfast, January 21, 2013. 

• Speaker, "Persuading Jurors to Vote for Your Side," NJICLE, November 30, 2012. 

• Speaker at “Best Practices From the DiversityInc Top 50" corporate diversity event in 

New York City in April 24-25, 2012. A video clip of Mr. Brown's presentation, 

"Diversity Management & Global Human Rights: Should Your Company Get 

Involved?," can be accessed here. 

• Featured in the article, "Diversity & Inclusion: Why This Attorney Makes Global Human 

Rights His Personal Challenge," DiversityInc.com, May 2012. 

• Speaker,” Marketing and Ethics: Maximizing Results While Avoiding Liability,” New 

Jersey State Bar Association Annual Meeting, May 16, 2012. 

• Speaker, “Saving the Innocent: The Last Resort Exoneration Project,” New Jersey State 

Bar Association Annual Meeting, May 16, 2012. 

• Interview on Due Process: "The 9-11 Commission Chairs in Candid Conversation: 

Former Governor Tom Kean (Commission Chair) and Former Congressman Lee 

Hamilton (Vice Chair)," January 2012. 

• Author, "Taking Risks for Your Brothers: The Power of Dr. King’s Words," 

DiversityInc.com, January 2012. 

• Author, “Apple (Pie), Cotton Comfort and Hershey's Kisses: S'More on International 

Human Rights Due Diligence,” New Jersey Corporate Counsel Association Newsletter, 

August 5, 2011. 

• Author, “DC Court of Appeals Reinstates Alien Tort Statute (ATS) Claims Against 

Exxon Mobil for Complicity in Extraterritorial Acts Raising Policy Considerations for 

Multinationals,” Greenbaum, Rowe, Smith & Davis LLP Client Alert, July 2011. 

• Author, "Assisting Business Leaders in Meeting the 'Corporate Responsibility to Respect 

Human Rights',” July 5, 2011. 

• Author, "BP Executives' Human-Rights Miscalculation: Have They Bet the Company?" 

DiversityInc.com, July 2010. 

• Quoted in the article, "Will New Bashir Charges Make Arrest More Likely?" that 

appeared on the Institute for War & Peace Reporting's website on July 16, 2010. 

• Featured in the article,"Bearing Witness," that appeared in Super Lawyers - New Jersey 

Edition magazine, April 2009. 

Author, "When the Government Knocks," Biz India, May/June 2007. 

• Author of the chapter, "Client Relations in White Collar Crime Investigations," in the 

Inside the Minds's series book White Collar Law Client Strategies (Aspatore, 2007). 

• Co-Author, "A Non-Toxic Ounce of Prevention: Notes on Handling Enron-era 

Environmental Investigations," New Jersey Law Journal, December 4, 2006. 

Bar Admissions 

• New Jersey, 1974 

• New York, 1983 

• Special Court for Sierra Leone, 2004

Carol Johnston joined the Administrative Office of the Courts in Trenton, New Jersey, in 2006 

and serves as Secretary to the Advisory Committee on Professional Ethics, the Committee on 

Attorney Advertising and the Committee on the Unauthorized Practice of Law. She also 

answers the attorney ethics research assistance hotline. 

Ms. Johnston formerly served as a Deputy Attorney General with the New Jersey Attorney 

General’s Office, Division of Law, for 15 years. She was Ethics Officer for the Department of 

Law and Public Safety and a member of the Prosecutor’s Code of Ethics Committee. She has 

lectured for the American Law Institute-American Bar Association (ALI-ABA), the New Jersey 

State Bar Association, county bar associations and American Inns of Court. 

Ms. Johnston is a graduate of Hamilton College and New York Law School. She clerked for 

Chief Justice Robert N. Wilentz.

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