Unpublished Opinions for the Week of September 5, 2016

01-2-1226 In re: You & Me Preschool Application for Regulatory Waiver, N.J. Super. App. Div. (per curiam) (9 pp.) You & Me School for Children with Autism Spectrum Disorders appealed from the final decision of the commissioner of Education. The decision denied its waiver request to be relieved of the minimum Average Daily Enrollment (ADE) of 16 public school placements required by N.J.A.C. 6A:23A-18.3(c). In 1992, the Department of Education approved You & Me as a private school for students with disabilities (PSSD) serving students with autism spectrum disorders. This enabled You & Me to accept placement of public school students with their home school districts paying the students’ tuition. In order to maintain an approved status, private schools are required to maintain an ADE of public school placement students. In 2004, amendments to N.J.A.C. 6A:23A-18.3(c)(1)(iii) increased the minimum ADE from 16 to 24 students. Because You & Me was grandfathered under the regulation, its minimum ADE remained at 16 students. After You & Me was unable to meet the ADE requirement over three consecutive school years, on June 11, 2012, the school applied for a waiver of compliance with the ADE requirement to avoid losing its approved PSSD status. The acting commissioner of education denied the waiver application and confirmed rescission of the school’s PSSD status. The school maintained that the commissioner failed to consider the supplemental ADE data for school years subsequent to 2011-2012, showing an ADE of 12 students for 2012-2013 and 13 students for 2013-2014. As the DOE correctly asserted, no additional fact-finding was required. The school’s ADE was reviewed after the 2008-2009 school year, and the DOE properly relied on the ADE for the prescribed three-schoo-year time period. The school consistently failed to satisfy the standard of 16 students over the five school years under consideration. The appellate panel affirmed the denial of the application waiver.

04-2-1183 Bailey v. Zucker, Goldberg & Ackerman LLC, N.J. Super. App. Div. (per curiam) (6 pp.) After a judgment of foreclosure was entered in favor of the assignee/mortgagee bank and against Bailey, and her appeals were unsuccessful, she filed this action against the law firm, and its managing partner, that represented the assignee/mortgagee in the foreclosure proceedings, asserting claims for common law fraud, consumer fraud under N.J.S.A. 56:8-1 to -20, aiding and abetting, equitable fraud, negligent misrepresentation and violation of New Jersey RICO. Defendants moved to dismiss the complaint. The judge granted the motion, finding no legal grounds to hold defendants liable for any alleged fraud the original lender or its assignee might have committed against plaintiff or to hold them liable to plaintiff based only on having represented the assignee/mortgagee in the foreclosure action. The judge also rejected plaintiff’s argument that her suit was not based on professional malpractice because defendants functioned as “debt collectors” in the course of prosecuting the foreclosure action. The panel affirmed. It found that the alleged underlying facts attempted to assign liability to defendants based on their role in preparing and filing a “fraudulently recorded sham transfer of plaintiff’s real estate property from Wells Fargo Bank to ‘US Bank National Association,’” that such alleged misconduct fell within the requirements of the affidavit of merit statute, and that the plaintiff had not submitted an AOM. The panel also found that plaintiff had failed to allege any facts that would constitute a basis to impose liability upon defendants as a nonclient.