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CEREBRAL PALSY CENTER, BERGEN COUNTY, INC. v. MAYOR
AND COUNCIL OF THE BOROUGH OF FAIR LAWN
Appellate Division,
A-6896-02T5, approved for publication January 27, 2005. (15
pages). Facts-on-Call
Order No. 92280
A municipal
ordinance that requires an applicant to be responsible for
paying the fees and expenses of the municipality’s public
advocate in connection with that application is invalid under
the Municipal Land Use Law.
______________________________________________________
MADSON v. NEW JERSEY TURNPIKE
AUTHORITY
Appellate Division,
A-2943-03T2, January 25, 2005, not approved for publication.
(4 pages). Facts-on-Call
Order No. 17548
Order allowing the
plaintiff to file a late notice of claim under the Tort Claims
Act affirmed; the plaintiff, who was an assistant manager at a
gas station in a rest area on the New Jersey Turnpike, was
injured when he slipped and fell while working; the
plaintiff’s attorney filed a timely notice of claim with the
municipality, the New Jersey Department of Law and Public
Safety, the Office of the Attorney General, and the County;
several weeks after the 90-day period had expired, a claims
investigator from the New Jersey Bureau of Risk Management
advised the plaintiff’s attorney that the defendant New Jersey
Turnpike Authority was a public entity “separate and distinct
from the State” and that notice to the State was not notice to
the defendant; the plaintiff’s attorney then forwarded a
notice to the defendant, which the defendant declined as
untimely; the motion judge (1) properly granted the
plaintiff’s motion to file a late notice of claim and (2)
properly concluded that there had been substantial compliance,
that the defendant was not claiming substantial prejudice, and
that there were extraordinary circumstances.
______________________________________________________
 | CITY OF EAST ORANGE v. BLOCK 232, LOT
34
Appellate Division, A-2760-03T2, January 27, 2005, not
approved for publication. (7 pages). Facts-on-Call
Order No. 17555
Order vacating a
final judgment of foreclosure and allowing the holder of a
first tax sale certificate to redeem it within 30 days
reversed; the first tax sale certificate was obtained at a
public sale in May 1999; the plaintiff City purchased a second
tax sale certificate in September 2000 and filed a foreclosure
action in July 2002; the holder obtained the first tax sale
certificate in May 2003 by assignment from the prior holder;
the holder purchased the certificate with knowledge of the
City’s pending foreclosure action but did not intervene, and
it moved to vacate the City’s foreclosure judgment under Rule
4:50-1 more than five months after the judgment was recorded;
the trial court abused its discretion (1) by relying on its
view of public policy and disregarding the public policies
furthered by tax sales, (2) by misapprehending the legal
effect of the vacation, and (3) by giving too little
consideration to the importance of the finality of judgments;
there were no exceptional circumstances warranting relief from
the judgment.
______________________________________________________
 | ATALLO v. JOHNSON
Appellate Division,
A-4433-03T5, January 31, 2005, not approved for publication.
(7 pages). Facts-on-Call
Order No. 17571
Decision of the
School Ethics Commission (1) that dismissed the ethics
complaint of the plaintiff Board of Education member against
the defendant attorney and (2) that imposed sanctions for
filing a frivolous pleading affirmed; the plaintiff alleged
that the defendant had violated the confidentiality of ethics
matters by circulating to the Board a status report on other
ethics complaints concerning the plaintiff; the Commission
properly determined that the defendant was merely a private
attorney serving as a special consultant to the Board at the
time he prepared the report and therefore that he was not a
school official subject to the Commission’s jurisdiction;
moreover, because the plaintiff later filed a complaint with
the District XI Ethics Committee, the Commission correctly
concluded that the plaintiff knew that the Commission lacked
jurisdiction.
______________________________________________________
PISCATAWAY TOWNSHIP BOARD OF EDUCATION v.
PISCATAWAY TOWNSHIP EDUCATION ASSOCIATION
Appellate Division,
A-2435-03T2, January 24, 2005, not approved for publication.
(7 pages). Facts-on-Call
Order No. 17545
Chancery Division
decision holding that the dispute between the plaintiff Board
of Education and the defendant union over the effective date
of a teacher’s termination was not arbitrable affirmed;
because the provisions relating to termination were found only
in the employment contract, the dispute rested solely on the
parties’ differing interpretations of the employment contract;
because the dispute did not arise from any differences about
the terms of the collective negotiations agreement, it was not
within the scope of the collective negotiations agreement’s
arbitration clause.
______________________________________________________
D.C. v. LAWRENCE TOWNSHIP BOARD OF
EDUCATION
OAL Docket No. EDS
50-04, Agency Docket No. 2002 8507, Final Agency Decision:
December 29, 2004, released for publication January 11, 2005.
By Stein, ALJ. (36 pages).
The student’s
parents were entitled to reimbursement for the tuition and
costs arising from their unilateral decision to enroll the
student in a private school because that placement was
appropriate and because the board of education had not offered
an appropriate placement.
______________________________________________________
T.W. v. NORTH PLAINFIELD BOARD OF
EDUCATION
OAL Docket Nos. EDS
8699-03 and EDS 392-04, Agency Docket Nos. 2004 8408 and 2004
8559, Final Agency Decision: January 3, 2005, released for
publication January 11, 2005. By Martone, ALJ. (44 pages).
The administrative law judge dismissed the parents’
amended petition for reimbursement of the educational expenses
arising from their unilateral placement of their son in a
private parochial school. After the son was suspended from the
first grade a second time for assaulting students and staff,
he was placed in a State-approved school that served students
with educational disabilities. After unsuccessfully seeking to
return their son to the respondent Board of Education’s
school, the parents unilaterally enrolled him in a private
parochial school. The ALJ determined that the parents were not
entitled to reimbursement (1) because they had refused to
permit their son to undergo an initial evaluation by the
Board, (2) because they had unilaterally withdrawn their son
without advance written notice, and (3) because they had not
presented evidence to support their claim that the private
parochial school was an appropriate placement.
______________________________________________________
P.S. v. PRINCETON REGIONAL BOARD OF
EDUCATION
OAL Docket Nos. EDS
327-02, EDS 4598-03, and EDS 4664-03, Agency Docket Nos. 2002
6039, 2004 7917, and 2004 7909, Final Agency Decision:
November 30, 2004, released for publication January 4, 2005.
By Fidler, ALJ. (33 pages).
The administrative
law judge denied the petitioner parents’ request for the
reimbursement of educational expenses that arose from their
unilateral placement of their daughter in a private school
specializing in educating dyslexic children. The petitioners
rejected the individualized education program for the ninth
grade that was designed by the respondent Board of Education’s
team, and they negotiated for their daughter to split her
schedule between the private school and the Board’s school.
After a few months, the petitioners enrolled their daughter at
the private school full time. The ALJ determined that the
Board had demonstrated by a preponderance of the evidence that
it had offered a free, appropriate public education to the
daughter and that the petitioners therefore were not entitled
to reimbursement.
______________________________________________________
J.H. v. UPPER DEERFIELD TOWNSHIP BOARD OF
EDUCATION
OAL Docket Nos. EDS
934-04 and EDS 8234-04, Agency Docket Nos. 2004-8583 and
2005-9415, Final Agency Decision: December 7, 2004, released
for publication January 4, 2005. By Gorman, ALJ. (23 pages).
The administrative law judge dismissed the father’s
petition for a change in the classification of his 9-year-old
son and a corresponding change in the son’s individualized
education program. The petitioner alleged that his son
suffered from Asperger’s Syndrome, which is a form of autism,
and that he therefore required an autism consultant,
occupational therapy, social skills training, a psychiatric
evaluation, and a long-term specialized school setting. The
ALJ analyzed 15 reports from 14 specialists, but only one
report — which was later withdrawn — suggested that the son
suffered from a form of autism. The ALJ found by an
“overwhelming” preponderance of the evidence that the son did
not suffer from any form of autism, including Asperger’s
Syndrome, and that he therefore did not have the authority to
alter the IEP.
______________________________________________________
IN RE REPUBLIC SERVICES OF NEW JERSEY,
L.L.C.
Appellate Division, A-5410-02T1, January 28, 2005, not
approved for publication. (4 pages). Facts-on-Call
Order No. 17559
Issuance of a
permit to the respondent recycler to operate a transfer
station and material recovery facility in Raritan Township
affirmed; the respondent had run a recycling operation on the
facility’s site since 1991, and the appellant Township
challenged the Department of Environmental Protection’s
decision to issue the permit on the grounds (1) that it
violated the requirements of the Solid Waste Management Act
and (2) that it was arbitrary, capricious, and unreasonable
because the Department did not properly review the permit
application; the Department’s decision was “well supported” by
the record that it had compiled, and the Township’s contention
that the Department had not abided by procedural guidelines
concerning notice to and comment by affected persons was
belied by the record; an agency’s decision is not rendered
procedurally infirm merely because the agency did not adopt
every suggestion made by an opponent.
______________________________________________________
PANOS v. BOROUGH OF SEASIDE
HEIGHTS
Appellate Division,
A-6456-03T2, January 28, 2005, not approved for publication.
(10 pages). Facts-on-Call
Order No. 17561
Law Division order
denying the defendant police officer’s motion for a protective
order to bar the plaintiffs from asking certain deposition
questions affirmed but modified to protect the defendant’s
rights against self-incrimination; the plaintiffs brought an
action for assault, false arrest, and false imprisonment
against the municipality, its police department, and one of
the arresting officers, among others; when the plaintiffs
noticed the arresting officer for depositions, his attorney
informed them that the officer was the subject of an Internal
Affairs investigation and that he was entitled to assert
privilege and object to questions about the investigation;
contrary to the officer’s arguments on appeal, N.J.S.A.
2A:84A-27, N.J.S.A. 40A:14-181, and the Attorney General’s
Guidelines for Internal Affairs Policy and Procedure do not
prohibit him from answering questions, although Rule 4:14-3(c)
allows his attorney to instruct him not to answer questions
that might incriminate him.
______________________________________________________
IN RE KENT
Appellate Division,
A-3218-03T1, January 28, 2005, not approved for publication.
(7 pages). Facts-on-Call
Order No. 17560
Decision of the
Merit System Board (1) that adopted the administrative law
judge’s determination that the appellant sanitation worker had
engaged in conduct unbecoming a public employee and had caused
damage to a citizen’s vehicle and (2) that imposed a 10-day
suspension reversed and remanded; a citizen complained that
the bumper of her car had been scratched when a sanitation
worker threw a garbage can against it; there was no competent
evidence that the damage had been caused by a sanitation
worker or that the appellant was the person responsible where
the citizen, who was the only eyewitness to the incident, did
not testify and where nothing in the testimony of the other
witnesses that was not hearsay addressed the issue of the
appellant’s culpability.
______________________________________________________
IN RE PATERNO
Appellate Division,
A-660-03T3, January 25, 2005, not approved for publication. (6
pages). Facts-on-Call
Order No. 17551
Merit System
Board’s determination that the petitioner had failed to
establish residency in Newark as of July 1994 and that he
therefore was ineligible for appointment as a Newark
firefighter affirmed; N.J.A.C. 4A:4-2.11(c) provides that, if
there is a residency requirement, it must be met by the
announced closing date of the examination, and residency must
be maintained continuously from the closing date to the date
of appointment; the closing date for the exam was July 1994,
and the petitioner was placed on the eligible list on May 7,
1999; the petitioner’s address on the eligible list was a
Belleville address, which was the address that he had supplied
to the Department of Personnel; on his investigation
questionnaire, the petitioner responded that he lived at two
Newark addresses from 1993 to present; the evidence of
residency presented by the petitioner was “remarkably wanting”
where it consisted mostly of “self-serving affidavits that
lacked any corroboration” and contained the deficiencies noted
by the Board; the Board’s decision was not arbitrary,
capricious, or unreasonable, and the petitioner’s failure to
meet his burden of proof was “manifest.”
______________________________________________________
 | STATE v. BARNABA
Appellate Division,
A-774-03T2, January 28, 2005, not approved for publication.
(15 pages). Facts-on-Call
Order No. 17565
Conviction for
driving under the influence affirmed; there was no abuse of
discretion in the Municipal Court’s discovery order or the Law
Division’s de novo review, the defendant’s challenged
discovery requests did not fall within the scope of Rule
7:7-7, and there were no extraordinary circumstances
justifying discovery of the requested materials; the Law
Division judge properly concluded that the State had satisfied
the three prongs of the test under Romano v. Kimmelman,
and the Breathalyzer test results therefore were properly
admitted as scientifically reliable.
______________________________________________________
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February 1,
2005
