Aug. 2 to 8

Approved Opinions

New Jersey Law Journal


11-1-0919 Hirsch v. Amper Financial Services, Sup. Ct. (LaVecchia, J.) (31 pp.) Although traditional contract principles may in certain cases warrant compelling arbitration absent an arbitration clause, the intertwinement of the parties and claims in a dispute, viewed in isolation, is insufficient to warrant application of equitable estoppel to compel arbitration. [Decided Aug. 7, 2013.]
14-1-xxxx State v. Morgan, Sup. Ct. (Rabner, C.J.) (25 pp.) Both ex parte communications between the trial judge and jury were improper and the trial court erred in permitting the jurors to take written instructions home for the weekend. Despite those errors, the record affirmatively shows that the contacts and the decision to permit the jury to take home written instructions did not prejudice defendant and had no tendency to influence the verdict. [Decided Aug. 8, 2013.]
20-2-0941 Gnall v. Gnall, App. Div. (Lihotz, J.A.D.) (48 pp.) Reviewing plaintiff’s challenge to a limited-duration alimony award, we reversed, declaring a 15-year marriage does not qualify as short-term, precluding an award of limited-duration alimony. [Decided Aug. 8, 2013.]
26-1-0892 Ten Stary Dom Partnership v. Mauro, Sup. Ct. (Cuff, P.J.A.D., temporarily assigned) (35 pp.) Defendant satisfied the positive and negative criteria and is therefore entitled to a bulk variance from a frontage zoning requirement. The trial court’s affirmance of the board’s denial of the variance without prejudice violated the principle of res judicata. [Decided Aug. 5, 2013.]
58-2-0893 Adler v. SAVE, App. Div. (Fuentes, P.J.A.D.) (39 pp.) This appeal requires us to address the enforceability of a conditional inter vivos gift. Guided by the facts presented here, we hold that a charity that solicits and accepts a gift from a donor, knowing that the donor’s expressed purpose for making the gift was to fund a particular aspect of the charity’s eleemosynary mission, is bound to return the gift when the charity unilaterally decides not to honor the donor’s originally expressed purpose. Absent the donor’s consent, the recipient of the gift is not at liberty to ignore or materially modify the expressed purpose underlying the donor’s decision to give, even if the conditions that existed at the time of the gift may have materially changed, making the fulfillment of the donor’s condition either impossible or highly impractical. When, as here, the donor is alive and able to prove the conditional nature of the gift through his or her testimony and other corroborative evidence, a reviewing court’s duty is to enforce the donor’s original intent, by directing the charity to either fulfill the condition or return the gift. [Decided Aug. 5, 2013.]
37-1-0906 Norfolk Southern Railway Company v. Intermodal Properties, Sup. Ct. (Hoens, J.) (45 pp.) Norfolk Southern’s proposed use meets the requirement of N.J.S.A. 48:3-17.7 that the taking be “not incompatible with the public interest.” Intermodal may not invoke the prior public-use doctrine because it lacks the power to condemn and its proposed use is neither prior nor public. As used in N.J.S.A. 48:12-35.1, “exigencies of business” does not necessitate an urgent need for land in order to justify a taking. Rather, it limits a railroad’s power to condemn to those circumstances where the general needs or ordinary course of business require it. [Decided Aug. 6, 2013.]
35-5-0925 Paramus Associates v. Borough of Paramus, Tax Ct. (Nugent, J.T.C.) (14 pp.) The within tax appeal challenges the assessment on two contiguous lots owned by plaintiff that contain a retail store and an adjacent parking area. The municipal tax assessor sent two identical forms, one for each lot, seeking financial information for use in reaching the property tax assessments for 2012, pursuant to N.J.S.A. 54:4-34 (Chapter 91). When plaintiff prepared and returned the requested income and expense information for the property using just one form rather than two, defendant moved to dismiss the complaint for failure to comply with Chapter 91. The Tax Court held that a taxpayer receiving two Chapter 91 requests for two separate lots governed by a singular lease agreement has not “failed or refused to respond” pursuant to N.J.S.A. 54:4-34 when the timely response submitted to the assessor, albeit on a single form, contains all of the income and expense related to the property. [Decided Aug. 2, 2013.]  
07-7-0897 Eastman v. First Data Corporation, U.S. Dist. Ct. (Walls, S.U.S.D.J.) (18 pp.) Plaintiffs move to certify a class of more than 24,000 New Jersey merchants who entered into contracts for the acquisition of credit or debit card point-of-sale (POS) terminals with defendants First Data Corporation and First Data Merchant Services. The court finds that evidence of additional goods and services provided by defendants, in conjunction with the difficulty in determining a purchase price, prevents a classwide proceeding from generating “common answers.” The court also finds that proving whether First Data failed to disclose certain information cannot be done with common evidence. Because the complaint fails to satisfy the commonality requirement of Rule 23, the court denies the motion to certify the class. [Filed July 31, 2013.]
11-8-0864 Mylan Inc. v. SmithKline Beecham Corp., Third Cir. (Ambro, U.S.C.J.) (20 pp.) In this action alleging that defendant breached a settlement agreement with plaintiff that allegedly gave plaintiff the exclusive right to produce, market and sell generic paroxetine, by entering into a subsequent settlement in an unrelated suit that called for defendant to provide Apotex with its form of generic paroxetine to be marketed and sold in direct competition with Mylan, the district court erred in granting summary judgment to defendant on the breach-of-contract claim since it should have considered the objective evidence proffered by Mylan in support of its alternate reading of the contested settlement language to determine if the evidence showed a latent ambiguity. The grant of summary judgment on the claim of good faith and fair dealing is affirmed because Mylan failed to prove that defendant acted with bad motive or intent in entering into its agreement with Apotex, and on the of tortious interference claim because Mylan failed to prove that Apotex knew of its asserted exclusive contractual right or that it acted maliciously.  [Filed July 22, 2013.]

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