01-2-1140 Alicea v. Board of Review, App. Div. (Koblitz, J.A.D.) (10 pp.) Because appellant was not afforded the due process set forth in Rivera v. Board of Review, 127 N.J. 578 (1992), we reverse the Board of Review’s dismissal of his appeal because it was filed too late. Appellant was sent determinations assessing more than $17,000 in purportedly illegally collected unemployment benefits and penalties. These determinations were written in English, with only the appeal procedure translated into Spanish. We determine that Rivera protects Puerto Rican roofers as well as Puerto Rican farmworkers. To comply with the Rivera due process requirement of a notice written in Spanish to be sent to Puerto Rican seasonal workers, a translation of the substantive determination as well as a translation of the appeal timeline must be provided. An exhortation in Spanish to find someone to translate the determination is not sufficient. We reverse and remand for a hearing on the merits of the appeal. [Decided Aug. 28, 2013.]
09-2-1086 Fedor v. Nissan of North America and Ghandi v. Nissan of North America, App. Div. (Lihotz, J.A.D.) (33 pp.) We determine whether plaintiff-consumers, who were granted a repurchase of their respective vehicles through defendant-manufacturer’s informal dispute settlement mechanism, Auto Line, specifically established pursuant to the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (MMA), 15 U.S.C.A. §§ 2301 to 2312, retain the right to file a separate action solely to recover attorney’s fees under the MMA or the New Jersey Motor Vehicle Warranty Act (Lemon Law), N.J.S.A. 56:12-29 to -49, notwithstanding that Auto Line’s procedures expressly excluded attorney fee awards. We conclude a warrantor’s informal dispute resolution mechanism adopted under the MMA is not required to include a fee-shifting component for successful consumers, and may properly exclude an award of attorney’s fees. Further, we discern no support for the suggestion a consumer who successfully elects relief through a manufacturer’s informal dispute resolution mechanism created pursuant to the MMA has a right to attorney’s fees under the Lemon Law. [Decided Aug. 23, 2013.]
14-2-1111 State of New Jersey v. Blazas, App. Div. (Espinosa, J.A.D.) (62 pp.) The “meaningful opportunity to present a complete defense” guaranteed by the federal and New Jersey Constitutions is denied when the prosecution substantially interferes with a defendant’s ability to secure witness testimony. In this case, the government conduct alleged did not result in the denial of witness testimony but, rather, in the denial of access to the witness for interview by the defense. Because such allegations, if true, would be proof of substantial interference with defendant’s constitutionally guaranteed right of access to witnesses, we hold that the trial judge erred in failing to conduct an evidentiary hearing. In addition, we conclude that a reversal of defendant’s convictions is required because the trial judge granted his motion to proceed pro se without adequately advising him of the consequences of his decision. [Decided Aug. 26, 2013.]
14-2-1153 State v. Vasquez, App. Div. (Sapp-Peterson, J.A.D.) (10 pp.) We consider the recurring dilemma confronting trial courts when a defendant expresses dissatisfaction with representation by current counsel at sentencing after the court has denied an adjournment request to obtain new counsel. The court placed on the record strong and sustainable reasons justifying denial of the adjournment request. However, because the court failed to address defense counsel’s perceived conflict in his continued representation of defendant, we are constrained to vacate the sentence and remand. [Decided Aug. 28, 2013.]
17-2-1088 Morristown Associates v. Grant Oil Company, App. Div. (Ashrafi, J.A.D.) (21 pp.) The general six-year statute of limitations for damage to property, N.J.S.A. 2A:14-1, as mitigated by the discovery rule of Lopez v. Swyer, 62 N.J. 267 (1973), applies to a private claim for contribution pursuant to N.J.S.A. 58:10-23.11f(a)(2), which is part of the New Jersey Spill Compensation and Control Act. [Decided Aug. 23, 2013.] [Digested at page 45.]
22-2-1079 Township Pharmacy v. Division of Medical Assistance and Health Services, App. Div. (Fuentes, P.J.A.D.) (21 pp.) Plaintiff appeals from the decision of the Director of the New Jersey Division of Medical Assistance and Health Services denying its application to participate in the state’s Medicaid program as a pharmaceutical service provider. The director’s decision was based on plaintiff’s failure to disclose the criminal record of one of its employees. We affirm. We hold that the director correctly construed the disclosure requirements to enroll in the state’s Medicaid program as a provider of health care, in this case pharmaceutical services. Here, plaintiff failed to perform basic due diligence before answering a question intended to disclose information material to a proper determination of an applicant’s eligibility to participate in the Medicaid provider program. Although plaintiff did not intend to deceive or conceal this information, public policy supports the director’s determination that, under these circumstances, failure to provide accurate, truthful, and complete information constitutes good cause to deny the application. [Decided Aug. 22, 2013.]
36-2-1132 Kubert v. Best, App. Div. (Ashrafi, J.A.D.) (40 pp.) The sender of a text message has a duty under the common law of negligence to refrain from sending a text to a person who the sender knows, or has special reason to know, is then driving and is likely to read the text while driving. Plaintiffs in this case, who were grievously injured by a driver who was texting, did not produce sufficient evidence to withstand summary judgment on the remote texter’s breach of such a duty. (The concurring opinion disagrees with the imposition of such a duty on a remote texter, concluding that traditional tort principles are adequate to determine whether liability can be imposed.) [Decided Aug. 27, 2013.]
17-8-1171 Litgo New Jersey v. Commissioner New Jersey Department of Environmental Protection, Third Circuit (Hardiman, U.S.C.J.) (78 pp.) This appeal follows a 17-day bench trial that involved claims arising under federal and state environmental laws. At issue is which parties bear the responsibility for the removal of hazardous substances present in the soil and groundwater at a parcel of land in Somerville, New Jersey (the Property). The circuit panel determines that federal courts have exclusive jurisdiction over claims brought under the Resource Conservation and Recovery Act (RCRA). Therefore, the District Court’s dismissal of the Litgo appellant’s RCRA claim against the Sanzari appellees based on New Jersey’s entire controversy doctrine is reversed and remanded. The claim could not have been asserted in earlier New Jersey Superior Court proceedings. The District Court appropriately refused to grant attorney fees where the Litgo appellants were not prevailing or substantially prevailing parties under the RCRA. [Filed Aug. 6, 2013.]