b. Any party to an action to establish a lien shall be entitled to any defense available to any other party in contesting the amount for which a claimant seeks to have his lien reduced to judgment.
Tuesday, October 28, 2014
2A:44A-15. Improper filing of lien claim; forfeiture of rights; liability
15. a. If a lien claim is without basis, the amount of the lien claim is willfully overstated, or the lien claim is not filed in substantially the form or in the manner or at a time not in accordance with the provisions of this act, the claimant shall forfeit all claimed lien rights and rights to file subsequent lien claims to the extent of the face amount claimed in the lien claim. The claimant shall also be liable for all court costs, and reasonable legal expenses, including attorneys fees, incurred by the owner, contractor or subcontractor, or any combination of owner, contractor and subcontractor, in defending or causing the discharge of the lien claim. The court shall, in addition, enter judgment against the claimant for damages to any of the parties adversely affected by the lien claim.
b. If a defense to a lien claim is without basis, the party maintaining the defense shall be liable for all court costs, and reasonable legal expenses, including attorneys fees, incurred by any of the parties adversely affected by the defense to the lien claim. The court shall, in addition, enter judgment against the party maintaining the frivolous defense for damages to any of the parties adversely affected by said defense.
c. If a lien claim is forfeited pursuant to this section, or section 14 of this act, nothing herein shall be construed to bar the filing of a subsequent lien claim, provided, however, any subsequent lien claim shall not include a claim for the work, services, equipment or material claimed within the forfeited lien claim.
2A:44A-14. Claimants failure to bring action; forfeiture, liability
14. a. A claimant filing a lien claim shall forfeit all rights to enforce the lien, and shall immediately discharge the lien of record, if the claimant fails to bring an action in the Superior Court, in the county in which the real property is situated, to establish the lien claim:
(1) Within one year of the date of the last provision of work, services, material or equipment, payment for which the lien claim was filed; or
(2) Within 30 days following receipt of written notice, by personal service or certified mail, return receipt requested, from the owner requiring the claimant to commence an action to establish the lien claim.
b. Any lien claimant who forfeits a lien pursuant to subsection a. of this section and fails to discharge that lien of record in accordance with section 30 of this act, shall be liable for all court costs, and reasonable legal expenses, including attorneys fees, incurred by the owner, the contractor, or subcontractor, or any combination, in defending or causing the discharge of the lien claim. The court may, in addition, enter judgment against the claimant for damages to any of the parties adversely affected by the lien claim.
c. Whenever any claimant shall commence an action in the Superior Court of New Jersey to enforce a lien claim as provided by this act, the claimant shall cause a Notice of Lis Pendens to be filed in the office of the county clerk or register pursuant to the provisions of N.J.S.2A:15-6 et seq.
d. Any disputes arising out of the improvement which is the subject of a lien claim but which are unrelated to any action to enforce a lien claim may be brought in a separate action.
2A:44A-13. "Construction Lien Book," "Construction Lien Index Book;" fees
13. a. Each county clerk shall provide a book designated as the "Construction Lien Book" in which each clerk shall enter each Notice of Unpaid Balance and Right to File Lien and Amended Notice of Unpaid Balance and Right to File Lien, and each lien claim and amended lien claim, and each discharge, subordination or release of a lien claim or Notice of Unpaid Balance and Right to File Lien presented for filing pursuant to the provisions of this act.
b. The county clerk shall cause marginal notations to be made upon each document filed pursuant to this act, as follows: upon each Notice of Unpaid Balance and Right to File Lien whenever an Amended Notice of Unpaid Balance and Right to File Lien or a discharge relative thereto is filed; upon each lien claim whenever an amended lien claim relative thereto is filed; upon each Notice of Unpaid Balance and Right to File Lien whenever a lien claim or amended lien claim relative thereto is filed; upon each lien claim or amended lien claim whenever a discharge, subordination or release of a lien claim relative thereto is filed. In addition, the clerk shall cause a notation of the date of commencement of an action to enforce a lien claim to be made upon the lien claim or amended lien claim relative thereto. The failure of the clerk to cause a marginal notation to be made shall not affect the validity or enforceability of any document filed pursuant to this act.
c. The county clerk shall provide and maintain on a daily basis an index book designated as the "Construction Lien Index Book," setting forth therein in alphabetical order, arranged by the names of the owners, and by the names of the claimants, each Notice of Unpaid Balance and Right to File Lien, Amended Notice of Unpaid Balance and Right to File Lien, lien claim, amended lien claim, discharge, subordination and release of a lien claim or Notice of Unpaid Balance and Right to File Lien.
d. Each county clerk shall charge the following fees for the filing and marginal notation of the documents authorized to be filed by this act: Each Notice of Unpaid Balance and Right to File Lien
or Amended Notice of Unpaid Balance and Right to File Lien... $ 4.50
Each lien claim or amended lien claim..................... $ 4.50
Each discharge, subordination or release of lien claim or
release of Notice of Unpaid Balance and Right to File Lien .... $ 2.00
Each marginal notation ................................... $ 1.00
|2A:44A-12. Authorized withholding, deductions|
12. Upon receipt of notice of a lien claim, the owner shall be authorized to withhold and deduct the amount claimed from the unpaid part of the contract price that is or thereafter may be due and payable to the contractor or subcontractor, or both. The owner may pay the amount of the lien claim to the claimant unless the contractor or subcontractor against whose account the lien is filed notifies the owner and the lien claimant in writing within 20 days of service of the lien claim upon both the owner and the contractor or subcontractor, that the claimant is not owed the monies claimed and the reasons therefor. Any such payment made by the owner shall constitute a payment made on account of the contract price of the contract with the contractor or subcontractor, or both, against whose account the lien is filed.
The amended lien claim shall be filed in substantially the following form:
AMENDMENT TO CONSTRUCTION LIEN CLAIM
TO THE CLERK, COUNTY OF :
On (date), the undersigned claimant, (name of claimant) of (address of claimant), filed a CONSTRUCTION LIEN CLAIM in the amount of ($ ) DOLLARS for the value of the work, services, material or equipment provided in accordance with the contract between claimant and (name) as of (date).
This construction lien claim was claimed against the interest of (name) as (check one):
in that certain tract or parcel of land and premises described as Block , Lot , on the tax map of the of , County of , State of New Jersey, for the improvement of which property the aforementioned work, services, materials or equipment was provided.
This amends a lien claim which was previously filed with the County Clerk of County on , 19 as No. in Book No. , Page . A Notice of Unpaid Balance and Right to File Lien (if any) was previously filed with the County Clerk of on , 19 as No. in Book No. , Page .
Amendments to the original claim were recorded in the office of the County Clerk on , 19 as No. in Book No. , Page . (Complete if applicable)
Effective the date of the filing of this AMENDMENT TO CONSTRUCTION LIEN CLAIM, the value of the lien is claimed to be in the total amount of ($ ) DOLLARS, inclusive of all prior lien claims or amendments thereof.
The work, services, material or equipment provided upon which this Amendment is made are:
The date of the provision of the last work, services, material or equipment for which payment is claimed is (date).
NOTICE TO OWNER OF REAL PROPERTY
(Same as for lien claim)
NOTICE TO SUBCONTRACTOR OR CONTRACTOR
(Same as for lien claim)
CLAIMANTS REPRESENTATION AND VERIFICATION
(Same as for lien claim)
|2A:44A-10. Attachment of lien claim to interest of owner; amount of liability|
2A:44A-10. Attachment of lien claim to interest of owner; amount of liability
10. Subject to the limitations of section 6 of this act, the lien claim shall attach to the interest of the owner from and after the time of filing of the lien claim. Except as provided by section 20 of this act, no lien claim shall attach to the estate or interest acquired by a bona fide purchaser first recorded or lodged for record; nor shall a lien claim enjoy priority over any mortgage, judgment or other lien first recorded, lodged for record, filed or docketed. A lien claim filed under the provisions of this act shall be subject to the effect of a notice of settlement filed pursuant to P.L.1979, c.406 (C.46:16A-1 et seq.). Except as set forth in sections 15 and 21 of this act, the maximum amount for which an owner will be liable or an interest in real property subject to a lien under this act for one or more lien claims filed pursuant to this act shall not be greater than:
a. In the case of a lien claim filed by a contractor, the total amount of the contract price of the contract between the owner and the contractor less the amount of payments made, if any, prior to receipt of a copy of the lien claim pursuant to section 7 of this act, by the owner to the contractor or any other claimant who has filed a lien claim or a Notice of Unpaid Balance and Right to File Lien pursuant either to a contract with the contractor and any subcontractor or supplier, or a contract between a subcontractor of the contractor and any supplier or other subcontractor; or
b. In the case of a lien claim filed by a subcontractor or supplier, the amount provided in subsection a. of this section, or the contract price of the contract between the contractor or subcontractor and the subcontractor or supplier, as applicable, pursuant to which the work, services, materials or equipment is provided by the subcontractor or supplier, less the amount of payments made, if any, prior to receipt of a copy of the lien claim pursuant to section 7 of this act, to the contractor or supplier or any other claimant who has filed a lien claim or a Notice of Unpaid Balance and Right to File Lien pursuant to a contract with such subcontractor or supplier, whichever is less.
|2A:44-130. Release of funds from lien; bond|
The funds to which a lien has attached as provided by section 2A:44-129 of this title may be released and paid to the contractor by the financial officer of the public agency upon the filing with such officer of a bond in double the sum of all claims filed under the provisions of this article against the contract or the funds due or to grow due thereunder, and conditioned for the payment of such sum as may be adjudged to be due under such claims. The bond shall be approved, as to the form by the chief law officer of the public agency, and, as to the sufficiency thereof, by the financial officer with whom it is filed.
A lien created by this article shall, from the time of the filing thereof, attach, to the extent of the liability of the contractor or subcontractor as the case may be, for the claim preferred upon any funds due or to grow due to the contractor from the public agency under the contract against which the lien claim is filed unless released as provided by section 2A:44-130 of this title.
|2A:44-128.Debts for labor and materials; funds liable; asserting lien; forfeiture of lien|
2A:44-128. a. Any person who, as laborer, mechanic, materialman, merchant or trader, or subcontractor, in pursuance of or conformity with the terms of any contract for any public improvement made between any person and a public agency as defined in N.J.S.2A:44-126 and authorized by law to make contracts for the making of public improvements, performs any labor or furnishes any materials, including the furnishing of oil, gasoline or lubricants and vehicle use, toward the performance or completion of any such contract, shall, on complying with the provisions of subsection b. of N.J.S.2A:44-128, N.J.S.2A:44-132 and N.J.S.2A:44-133, have a lien for the value of the labor or materials, or both, upon the moneys due or to grow due under the contract and in the control of the public agency, to the full value of the claim or demand. The lien may be filed and, to the extent of the amount due or to grow due under the contract, shall become an absolute lien to the full value of the labor performed or materials furnished in favor of every person and his representatives and assigns employed by or furnishing materials to the contractor or subcontractor.
No public agency shall be required to pay a greater amount than the contract price of the labor performed and materials furnished or the value thereof when no specific contract is made with respect to the same by the contractor or subcontractor, respectively.
b. Any person who may seek to assert a lien under subsection a. of this section shall, within 20 days of the first performance of work or performance of work or delivery of labor or materials to a subcontractor, file with the municipal clerk, the chief financial officer of the county or the chairman of the commission, board or authority, whichever is appropriate, written notice that he or she has furnished labor or materials to the subcontractor. The notice shall contain the name, address and telephone number of the person providing the labor or materials, the name and geographical location of the public improvement for which the labor or materials have been supplied, the name of the subcontractor to which the labor or materials have been supplied, a description of the labor or materials supplied, and the date that the labor or materials were first supplied to the subcontractor. The officer of the public agency shall maintain a separate file for all written notices which shall be available to the public for inspection and copying during regular business hours. Failure to provide this written notice as required within 20 days of the first performance of work or delivery of labor or materials to the subcontractor shall be a bar to secure a lien for the labor or materials provided, unless there is money owing from the contractor to the subcontractor to whom the labor or materials were provided, in which case the lien shall be limited in value to a sum not greater than the money owing from the contractor to the subcontractor.
The public entity with which the notice required by this section is filed may charge an inquiry fee for information contained in the notice to any person, including the contractor. The inquiry fee shall be reasonable and shall be set to reflect the cost to the public entity of retrieving the information.
Notwithstanding the provisions of this section to the contrary, if a notice is filed after the 20-day period, the person so filing may assert a lien under subsection a. of this section for any labor or materials provided on or after that filing date.
No additional notice shall be required for work or materials provided under the same public improvement contract subsequent to the initial notice, notwithstanding that the work and materials may be provided under a separate contract or purchase order.
Written notice shall be substantially in the following form:
NOTICE OF THE DELIVERY OF LABOR OR MATERIALS
In accordance with the terms and provisions of the "Municipal Mechanics Lien Law," N.J.S.2A:44-125 et seq., notice is hereby given that:
1. (Name of person supplying labor or materials) of (address of person supplying labor or materials) has on (date) provided to (name of subcontractor) the following: (description of labor or materials). My telephone number is (telephone number of person supplying labor or materials).
2. The (description of labor or materials) were provided for the (name of public improvement) in (name of municipality), New Jersey.
Individual, firm or corporation...........
c. Funds received by a contractor and paid to a subcontractor or supplier for work performed or labor or materials supplied pursuant to a contract for any public improvement shall be applied only to amounts due and owing for work performed or labor or materials supplied for such public improvement. Any subcontractor or supplier who knowingly applies such payment received from the contractor on the public improvement to amounts due and owing for work performed or labor or materials supplied on a construction project other than the public improvement and then claims a lien on the public improvement for non-payment shall forfeit all lien rights under this title. A subcontractor or supplier forfeiting his lien rights pursuant to this section shall be liable for all damages incurred by any contractor as a result of the misapplication of such funds, including attorneys fees, and shall be liable for all court costs and reasonable legal expenses, including attorneys fees, incurred by the contractor in defending or causing the discharge of the lien claim.
L.1951 (1st SS), c.344; amended 1996, c.81, s.1.
Nothing in this article contained shall affect or impair the right of a creditor for labor performed or materials furnished to maintain an action to recover such debt against the person liable therefor.
2A:44-125. "municipal mechanics lien law
2A:44-125. Short title
This article may be cited as the "municipal mechanics lien law" .
L.1951 (1st SS), c.344.
As used in this article:
"Contractor" means a person, his assigns or legal representatives, with whom a contract with a public agency is made.
"Public agency" means any county, city, town, township, public commission, public board or other municipality in this state authorized by law to make contracts for the making of any public improvement in any city, town, township or other municipality.
"Subcontractor" means a person having a contract under a contractor for the performance of the same work, or any specified part thereof, and also a person having such a contract with a subcontractor, for the performance of the same work or any specified part thereof.
L.1951 (1st SS), c.344.
2A:44-127. Action to recover debt not barred
Nothing in this article contained shall affect or impair the right of a creditor for labor performed or materials furnished to maintain an action to recover such debt against the person liable therefor.
2A:18-61.9. Notice to tenant after master deed or agreement to establish cooperative
Any owner who establishes with a person an initial tenancy after the master deed or agreement establishing the cooperative was recorded shall provide to such person at the time of applying for tenancy and at the time of establishing any rental agreement a separate written statement as follows:
THIS BUILDING (PARK) IS BEING CONVERTED TO OR IS A CONDOMINIUM OR COOPERATIVE (OR FEE SIMPLE OWNERSHIP OF THE SEVERAL DWELLING UNITS OR PARK SITES). YOUR TENANCY CAN BE TERMINATED UPON 60 DAYS NOTICE IF YOUR APARTMENT (PARK SITE) IS SOLD TO A BUYER WHO SEEKS TO PERSONALLY OCCUPY IT. IF YOU MOVE OUT AS A RESULT OF RECEIVING SUCH A NOTICE, AND THE LANDLORD ARBITRARILY FAILS TO COMPLETE THE SALE, THE LANDLORD SHALL BE LIABLE FOR TREBLE DAMAGES AND COURT COSTS."
The parenthesized words shall be omitted or substituted for preceding words where appropriate. Such statement shall also be reproduced as the first clause in any written lease provided to such person.
As used in this act:
a. "Comparable housing or park site" means housing that is (1) decent, safe, sanitary, and in compliance with all local and State housing codes; (2) open to all persons regardless of race, creed, national origin, ancestry, marital status or sex; and (3) provided with facilities equivalent to that provided by the landlord in the dwelling unit or park site in which the tenant then resides in regard to each of the following: (a) apartment size including number of rooms or park site size, (b) rent range, (c) apartments major kitchen and bathroom facilities, and (d) special facilities necessary for the handicapped or infirmed; (4) located in an area not less desirable than the area in which the tenant then resides in regard to each of the following: (a) accessibility to the tenants place of employment, (b) accessibility of community and commercial facilities, and (c) environmental quality and conditions; and (5) in accordance with additional reasonable criteria which the tenant has requested in writing at the time of making any request under this act.
b. "Condominium" means a condominium as defined in the "Condominium Act," P.L.1969, c. 257 (C. 46:8B-1 et seq.).
c. "Cooperative" means a housing corporation or association which entitles the holder of a share or membership interest thereof to possess and occupy for dwelling purposes a house, apartment or other structure owned or leased by said corporation or association, or to lease or purchase a dwelling constructed or to be constructed by said corporation or association.
d. "Mobile home park" means any park, including a trailer park or camp, equipped to handle mobile homes sited on a year-round basis.
|2A:18-61.6. Owner liability for wrongful evictions|
a. Where a tenant vacates the premises after being given a notice alleging the owner seeks to personally occupy the premises under subsection L. of section 2 of P.L. 1974, c. 49 (C. 2A:18-61.1) and the owner thereafter arbitrarily fails to personally occupy the premises for a total of at least six months, or arbitrarily fails to execute the contract for sale, but instead permits personal occupancy of the premises by another tenant or instead permits registration of conversion of the premises by the Department of Community Affairs pursuant to "The Planned Real Estate Development Full Disclosure Act," P.L. 1977, c. 419 (C. 45:22A-21 et seq.), such owner shall be liable to the former tenant in a civil action for three times the damages plus the tenants attorney fees and costs.
b. If an owner purchases the premises pursuant to a contract requiring the tenant to vacate in accordance with subsection l. of section 2 of P.L. 1974, c. 49 (C. 2A:18-61.1) and thereafter arbitrarily fails to personally occupy the premises for a total of at least six months, but instead permits personal occupancy of the premises by another tenant or instead permits registration of conversion of the premises by the Department of Community Affairs pursuant to P.L. 1977, c. 419 (C. 45:22A-21 et seq.), such owner-purchaser shall be liable to the former tenant in a civil action for three times the damages plus the tenants attorney fees and costs.
c. If a tenant vacates a dwelling unit after notice has been given alleging that the owner seeks to permanently board up or demolish the premises or to retire permanently the premises from residential use pursuant to subsection g.(1) or h. of section 2 of P.L. 1974, c. 49 (C. 2A:18-61.1) and instead, within five years following the date on which the dwelling unit or the premises become vacant, an owner permits residential use of the vacated premises, the owner shall be liable to the former tenant in a civil action for three times the damages plus the tenants attorney fees and costs of suit.
An owner of any premises where notice has been given pursuant to subsection g.(1) or h. of section 2 of P.L. 1974, c. 49 (C. 2A:18-61.1), who subsequently seeks to sell, lease or convey the property to another, shall, before executing any lease, deed or contract for such conveyance, advise in writing the prospective owner that such notice was given and that the owners of the property are subject to the liabilities provided in this subsection and sections 3 and 4 of this 1986 amendatory and supplementary act. Whoever fails to so advise a prospective owner prior to the execution of the contract of sale, lease or conveyance is liable to a civil penalty of not less than $2,500.00 or more than $10,000.00 for each offense, and shall also be liable in treble damages, plus attorney fees and costs of suit, for any loss or expenses incurred by a new owner of the property as a result of that failure. The civil penalty prescribed in this subsection shall be collected and enforced by summary proceedings pursuant to "the penalty enforcement law" (N.J.S. 2A:58-1 et seq.). The Superior Court, Law Division, Special Civil Part, in the county in which the rental premises are located shall have jurisdiction over such proceedings. Process shall be in the nature of a summons or warrant, and shall issue upon the complaint of the Commissioner of the Department of Community Affairs, the Attorney General, or any other person.
d. If a tenant vacates a dwelling unit after receiving from an owner an eviction notice (1) purporting to compel by law the tenant to vacate the premises for cause or purporting that if the tenant does not vacate the premises, the tenant shall be compelled by law to vacate the premises for cause; and (2) using a cause that is clearly not provided by law or using a cause that is based upon a lease clause which is contrary to law pursuant to section 6 of P.L. 1975, c. 310 (C. 46:8-48); and (3) misrepresenting that, under the facts alleged, the tenant would be subject to eviction, the owner shall be liable to the former tenant in a civil action for three times the damages plus the tenants attorney fees and costs. An owner shall not be liable under this subsection for alleging any cause for eviction which, if proven, would subject the tenant to eviction pursuant to N.J.S. 2A:18-53 et seq. or P.L. 1974, c. 49 (C. 2A:18-61.1 et seq.).
In any action under this section the court shall, in addition to damages, award any other appropriate legal or equitable relief. For the purposes of P.L. 1974, c. 49 (C. 2A:18-61.1 et seq.), the term "owner" includes, but is not limited to, lessee, successor owner and lessee, and other successors in interest.
e. An owner shall not be liable for damages pursuant to this section or section 6 of this 1986 amendatory and supplementary act or subject to a more restrictive local ordinance adopted pursuant to section 8 of this 1986 amendatory and supplementary act if:
(1) Title to the premises was transferred to that owner by means of a foreclosure sale, execution sale or bankruptcy sale; and
(2) Prior to the foreclosure sale, execution sale or bankruptcy sale, the former tenant vacated the premises after receiving eviction notice from the former owner pursuant to subsection g.(1) or h. of section 2 of P.L. 1974, c. 49 (C. 2A:18-61.1); and
(3) The former owner retains no financial interest, direct or indirect, in the premises. The term "former owner" shall include, but not be limited to, any officer or board member of a corporation which was the former owner and any holder of more than 5% equity interest in any incorporated or unincorporated business entity that was the former owner; and
(4) The former tenant is provided notice and rights in accordance with the provisions of section 6 of this 1986 amendatory and supplementary act.
|2A:18-61.3. Causes for eviction or nonrenewal of lease|
4. a. No landlord may evict or fail to renew any lease of any premises covered by section 2 of this act except for good cause as defined in section 2.
b. A person who was a tenant of a landlord in premises covered by section 2 of P.L.1974, c.49 (C.2A:18-61.1) may not be removed by any order or judgment for possession from the premises by the owners or landlords successor in ownership or possession except:
(1) For good cause in accordance with the requirements which apply to premises covered pursuant to P.L.1974, c.49 (C.2A:18-61.1 et al.); or
(2) For proceedings in premises where federal law supersedes applicable State law governing removal of occupants; or
(3) For proceedings where removal of occupants is sought by an authorized State or local agency pursuant to eminent domain or code or zoning enforcement laws and which comply with applicable relocation laws pursuant to the "Relocation Assistance Law of 1967," P.L.1967, c.79 (C.52:31B-1 et seq.), the "Relocation Assistance Act," P.L.1971, c.362 (C.20:4-1 et seq.) or section 3 of P.L.1993, c.342 (C.2A:18-61.1g).
Where the owners or landlords successor in ownership or possession is not bound by the lease entered into with the former tenant and may offer a different lease to the former tenant, nothing in P.L.1986, c.138 shall limit that right.
Reinaldo Carmona v. Resorts International Hotel, Inc. (A-83-05)- Decided February 21, 2007
RIVERA-SOTO, J., writing for the majority of the Court.
In this appeal, the Court must determine: 1) whether an employee’s complaint for retaliation under the Law Against Discrimination (LAD) must be made in good faith and on a reasonable basis; and 2) whether an investigative report prepared by an employer, which the employer claims provided an independent basis for the employee’s discharge, should have been admitted into evidence.
Plaintiff Reinaldo Carmona was hired as a front desk clerk by defendant Resorts International Hotel Inc. On November 9, 2001, Carmona was fired. The reason for his termination gave rise to this lawsuit.
According to Carmona, he was a recovering cocaine user prone to relapses. Because of the relapses, he missed work on several occasions. Under Resorts’ progressive discipline, the absences accumulated as “points” against Carmona. By August 2001, Carmona had accumulated enough points so that another unexplained absence would render him liable for termination. While Carmona could have explored seeking an approved medical leave to treat his cocaine dependency, he focused instead on other Resorts employees who had received approved medical leave absences, claiming that Resorts applied its absenteeism/termination policy unevenly due to racism. On November 6, 2001, Carmona went to Resorts’ internal equal employment opportunity (EEO) office to complain. Resorts’ EEO director informed Carmona that she would conduct an investigation of his allegations.
On November 5, 2001, the day before Carmona complained to Resorts’ EEO office, he and William Santiago were observed improperly upgrading rooms in exchange for tips. Twice before, Carmona had been reprimanded for upgrading rooms without authorization. Santiago was interviewed, during which he admitted that he had upgraded rooms for gratuities. Santiago also implicated Carmona. On November 8, 2001, Resorts conducted an audit that showed that Carmona had improperly and without authorization upgraded twenty-seven rooms in October 2001. When questioned on November 9, 2001, Carmona admitted to upgrading rooms without authorization, although he denied receiving gratuities. He was fired that day. Resorts investigators collected their investigative material and compiled a report concerning the incident.
In April 2002, Carmona sued Resorts. The issues at trial, according to Carmona, were whether Resorts retaliated against him when it terminated him three days after he filed his discrimination complaint against Resorts and whether Resorts’ investigation into the room upgrades was a pretext to justify that retaliation. At trial, Resorts sought to introduce the investigative report into evidence. Carmona objected, and the trial court ruled that the report was not admissible because it was hearsay and unreliable. The trial court refused to instruct the jury that in addition to making a complaint of discrimination, Carmona had to have a reasonable good faith basis for the complaint. Instead, the trial court instructed the jury that to satisfy his burden of proof, Carmona must prove that he made a complaint of discrimination and that he was retaliated against because of that filing. The jury found that Carmona proved that the reason Resorts gave for Carmona’s termination was a pretext and the real reason was retaliation for his complaint of discrimination. The jury awarded Carmona compensatory damages and lost wages.
On appeal, the Appellate Division affirmed. This Court granted Resorts’ petition for certification.
HELD: In a case alleging retaliation under the LAD, plaintiff bears the burden of proving that his complaint was made reasonably and in good faith. When an employer defends against a claim that an employee’s discharge was the product of retaliation, an investigative report prepared by the employer that purports to demonstrate a non-retaliatory purpose for the employee’s termination is not hearsay and is admissible.
The LAD is one of New Jersey’s leading legislative pronouncements, which sets forth the clear public policy of this State to eradicate invidious discrimination from the workplace. In the development of this State’s anti-discrimination jurisprudence, the Court has frequently looked to case law under the federal Title VII of the Civil Rights Act for guidance in developing standards to govern the resolution of LAD claims. The Court’s continuing examination of the LAD has led it also to look to subsequent legislative enactments for guidance on LAD’s scope, including the later-adopted New Jersey Conscientious Employee Protection Act (CEPA). A CEPA plaintiff must show that he reasonably believed that his employer’s conduct was violating either a law, rule, or regulation promulgated pursuant to law or a clear mandate of public policy. (pp. 17-20)
A requirement that a LAD-retaliation plaintiff demonstrate that his underlying complaint was reasonable and in good faith is entirely consonant with the purpose of the LAD. The Court follows parallel federal precedents, under which a plaintiff must show that he had a reasonable, good-faith belief that discrimination occurred to prevail on a retaliation claim, a tenet universally observed by every United States Court of Appeals that has considered the question. (pp. 20-21)
This requirement that the underlying complaint be reasonable and made in good faith is recognized because its absence may well lead to abuse. The LAD was and is intended as a shield to protect employees from the wrongful acts of their employers, and not as a sword to be wielded by a savvy employee against his employer.
Here, Resorts was denied an instruction to the jury to the effect that, as part of his case-in-chief, Carmona was required to prove that he had a reasonable, good-faith belief for his underlying discrimination complaint as the basis for his later retaliation complaint. Carmona did not complain about discrimination in the application of Resorts’ absenteeism policy until November 6, 2001, the day after an investigation into allegations of theft by Carmona was started. The trial court charged the jury that the bare fact that Carmona filed a complaint alleging discrimination, without more, was sufficient to satisfy his burden in respect of the first element of his LAD-retaliation claim, a charge that the Court holds to be legally insufficient and incorrect. The jury could have come to a different result had it been correctly instructed. (pp. 23-25)
An investigative report concerning an employee is admissible as non-hearsay evidence whenever the employer’s motivations are directly at issue. Moreover, in the context of a LAD retaliation claim, a personnel file was admissible because the information in the file bears on the reasonableness and good faith of defendant’s conduct. There is no appreciable difference between a personnel file -- which is created and maintained exclusively by the employer -- and an investigative report. Further support is found in federal cases that parallel the LAD. Other states also follow this rule. (pp. 25-30)
Resorts’ investigative report would be admissible to show that Resorts terminated Carmona’s employment for non-pretextual reasons, provided Resorts also demonstrates (1) that one of its decision makers knew of the report’s contents and acted in reliance thereon, and (2) that all portions of the report were separately admissible or properly and intelligibly redacted. (pp. 30-31)
The judgment of the Appellate Division is REVERSED and REMANDED for proceedings consistent with this opinion.
JUSTICE WALLACE has filed a separate, DISSENTING, opinion, concluding that the Court should not impose a new standard that requires an employee to establish that the complaint for retaliation was made in good faith and on a reasonable basis.
JUSTICES LONG, LaVECCHIA, ZAZZALI and ALBIN join in JUSTICE RIVERA-SOTO’s opinion. JUSTICE WALLACE filed a separate, DISSENTING opinion.
SUPREME COURT OF NEW JERSEY
RESORTS INTERNATIONAL HOTEL, INC., d/b/a RESORTS ATLANTIC CITY,
Decided February 21, 2007
Friday, October 24, 2014
|2A:18-61.2 Removal of residential tenants; required notice; contents; service.|
3. No judgment of possession shall be entered for any premises covered by section 2 of this act, except in the nonpayment of rent under subsection a. or f. of section 2, unless the landlord has made written demand and given written notice for delivery of possession of the premises. The following notice shall be required:
a. For an action alleging disorderly conduct under subsection b. of section 2, or injury to the premises under subsection c. of section 2, or any grounds under subsection m., n., o. or p. of section 2, three days notice prior to the institution of the action for possession;
b. For an action alleging continued violation of rules and regulations under subsection d. of section 2, or substantial breach of covenant under subsection e. of section 2, or habitual failure to pay rent, one months notice prior to the institution of the action for possession;
c. For an action alleging any grounds under subsection g. of section 2, three months notice prior to the institution of the action;
d. For an action alleging permanent retirement under subsection h. of section 2, 18 months notice prior to the institution of the action and, provided that, where there is a lease in effect, no action may be instituted until the lease expires;
e. For an action alleging refusal of acceptance of reasonable lease changes under subsection i. of section 2, one months notice prior to institution of action;
f. For an action alleging any grounds under subsection l. of section 2, two months notice prior to the institution of the action and, provided that where there is a written lease in effect no action shall be instituted until the lease expires;
g. For an action alleging any grounds under subsection k. of section 2, three years notice prior to the institution of action, and provided that where there is a written lease in effect, no action shall be instituted until the lease expires;
h. In public housing under the control of a public housing authority or redevelopment agency, for an action alleging substantial breach of contract under paragraph (2) of subsection e. of section 2, the period of notice required prior to the institution of an action for possession shall be in accordance with federal regulations pertaining to public housing leases.
The notice in each of the foregoing instances shall specify in detail the cause of the termination of the tenancy and shall be served either personally upon the tenant or lessee or such person in possession by giving him a copy thereof, or by leaving a copy thereof at his usual place of abode with some member of his family above the age of 14 years, or by certified mail; if the certified letter is not claimed, notice shall be sent by regular mail.
|2A:18-61.1e. Rights of former tenants|
6. If a dwelling unit becomes vacated after notice has been given that the owner seeks to permanently board up or demolish the premises or seeks to retire permanently the premises from residential use pursuant to paragraph (1) of subsection g. or subsection h. of section 2 of P.L.1974, c.49 (C.2A:18-61.1) and if at any time thereafter an owner instead seeks to return the premises to residential use, the owner shall provide the former tenant:
a. Written notice 90 days in advance of any return to residential use or any agreement for possession of the unit by any other party, which notice discloses the owners intention to return the unit to residential use and all appropriate specifics;
b. The right to return to possession of the vacated unit or, if return is not available, the right to possession of affordable housing relocation in accord with the standards and criteria set forth for comparable housing as defined by section 4 of P.L.1975, c.311 (C.2A:18-61.7); and
c. In the case of a conversion, the right to a protected tenancy pursuant to the "Senior Citizens and Disabled Protected Tenancy Act," P.L.1981, c.226 (C.2A:18-61.22 et seq.), or pursuant to the "Tenant Protection Act of 1992," P.L.1991, c.509 (C.2A:18-61.40 et al.), if the former tenant would have at the time of the conversion been eligible for a protected tenancy under either of those acts, had the former tenant not vacated the premises.
The 90-day notice shall disclose the tenants rights pursuant to this section and the method for the tenants response to exercise these rights. A duplicate of the notice shall be transmitted within the first five days of the 90-day period to the rent board in the municipality or the municipal clerk, if there is no board. Notwithstanding the provisions of subsection c. of section 3 of P.L.1975, c.311 (C.2A:18-61.6), damages awarded shall not be trebled where possession has been returned in accord with this section; nor shall any damages be awarded as provided for in subsection e. of section 3 of P.L.1975, c.311 (C.2A:18-61.6). An owner who fails to provide a former tenant a notice of intention to return to residential use pursuant to this section is liable to a civil penalty of not less than $2,500.00 or more than $10,000.00 for each offense, and shall also be liable in treble damages, plus attorney fees and costs of suit, for any loss or expenses incurred by a former tenant as a result of that failure. The penalty prescribed in this section shall be collected and enforced by summary proceedings pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Superior Court, Law Division, Special Civil Part, in the county in which the rental premises are located shall have jurisdiction over such proceedings. Process shall be in the nature of a summons or warrant, shall issue upon the complaint of the Commissioner of the Department of Community Affairs, the Attorney General, or any other person. No owner shall be liable for a penalty pursuant to this section if the unit is returned to residential use more than five years after the date the premises are vacated or if the owner made every reasonable effort to locate the former tenant and provide the notice, including, but not limited to, the employment of a qualified professional locator service, where no return receipt is obtained from the former tenant.
In any action under this section the court shall, in addition to damages, award any other appropriate legal or equitable relief.
NJ Laws Newsletter E429
1. Selecting A Guardian in Your Will for Minor Children
2. Arrest warrant limits search to immediate area of premises.
3. Double jeopardy bars new trial after mid-trial acquittal.
4. Fun Upcoming Running Races Charity Events Selected by Kenneth Vercammen.
5. Welcome Fall Law Clerks
6. Ken Vercammens Annual Christmas Happy Hour & Networking Party
1. Selecting A Guardian in Your Will for Minor Children
If you have minor children, the most important reason to plan your estate is to ensure proper provisions are made for your children. While it can seem overwhelming to deal with all the issues involved, consider what would happen if you died with no provisions. At that point, your childrens guardian would be determined by the courts and there may not be adequate funds available until they reach adulthood, leaving them dependent on the goodwill of relatives. If you have grand children, remind your children to have a Will setting forth who is first and second proposed guardians.
When selecting a guardian, consider the following:
Who would be the best guardian for your children?
While your first inclination may be to select your parents, consider whether they will have the energy to raise your children. A better alternative may be a sibling or friend. One of your most important considerations will be whether you think that individual will be able to raise your child like one of their own. If you have several children, is it reasonable to expect one person to raise all of them? You may want to name more than one guardian, but make sure the guardians will work together to keep the children as close as possible. If the person you are considering lives in another city or state, consider whether you want to uproot your children while they are going through the trauma of their parents death. Make sure youre comfortable with the guardians parental style and moral beliefs.
Have you talked to your selected guardian? Once youve settled on a guardian, discuss your decision with that person to make sure he or she is willing to take on the responsibility? Be sure to name a contingent guardian in case your first choice is unable to serve. Discuss your wishes regarding how you want your children raised, indicating your preferences for education, religion, lifestyle, and other factors.
Have you made adequate financial arrangements for your children? You wouldnt want your children to be a financial burden, or their presence may be resented. Determine how much is needed for living expenses, hobbies, medical expenses, and college. Consider other items as well. For instance, will your guardians home comfortably accommodate your children, or should you leave funds for an addition to the home? Include a financial cushion so there is plenty of money until your children at least reach adulthood. Should the person who has physical custody also handle their finances? You can name two guardians, one for physical custody and one to handle their finances. Decide whether trusts should be set up and how money should be distributed when your children reach adulthood.
Have you reviewed your choice of guardian recently? Just because youve selected a guardian doesnt mean that person is still the best choice. As your children grow, review your guardian choice every couple of years.
2. Arrest warrant limits search to immediate area of premises. Bailey v. United States 133 S. Ct __ (2013)
While police were preparing to execute a warrant to search a basement apartment for a handgun, detectives conducting surveillance in an unmarked car outside the apartment saw two men later identified as petitioner Bailey and Bryant Middleton leave the gated area above the apartment, get in a car, and drive away. The detectives waited for the men to leave and then followed the car approximately a mile before stopping it. They found keys during a putdown search of Bailey, who initially said that he resided in the apartment but later denied it when informed of the search. Both men were handcuffed and driven in a patrol car to the apartment, where the search team had already found a gun and illicit drugs. After arresting the men, police discovered that one of Baileys keys unlocked the apartments door.
At trial, the District Court denied Baileys motion to suppress the apartment key and the statements he made to the detectives when stopped, holding that Baileys detention was justified under Michigan v. Summers, 452 U.S. 692, as a detention incident to the execution of a search warrant, and, in the alternative, that the detention was supported by reasonable suspicion under Terry v. Ohio, 392 U.S. 1. Bailey was convicted. Held:The rule in Summers is limited to the immediate vicinity of the premises to be searched and does not apply here, where Bailey was detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question.
3. Double jeopardy bars new trial after mid-trial acquittal.Evans v. Michigan 133 S. Ct. 1069 (2013)
When the State of Michigan rested its case at petitioner Lamar Evans arson trial, the court entered a directed verdict of acquittal, based upon its view that the State had not provided sufficient evidence of a particular element of the offense. It turns out that the unproven element was not actually a required element at all. We must decide whether an erroneous acquittal such as this nevertheless constitutes an acquittal for double jeopardy purposes, which would mean that Evans could not be retried. This Court has previously held that a judicial acquittal premised upon a misconstruction of a criminal statute is an acquittal on the merits ... [that] bars retrial. Arizona v. Rumsey,467 U.S. 203, 211 (1984). Seeing no meaningful constitutional distinction between a trial courts misconstruction of a statute and its erroneous addition of a statutory element, we hold that a midtrial acquittal in these circumstances is an acquittal for double jeopardy purposes as well
4. Fun Upcoming Running Races Charity events Selected by Kenneth Vercammen
If you are attending any of these charity races, please call or email Ken V. Often we car pool or meet at these events.http://vercammensport.blogspot.com/
10/26 Hoboken 5k 10am Wakefern co-sponsor
10/27 Trick or Trot 5k Long Branch party at Celtic Cottage after run 2 for 1 drinks
10/29 Freezing Cold Hash Volunteer meeting 6pm Deal Firehouse Ken will pay for beers. Sandwiches provided. Volunteers receive free admission to Freezing Cold Hash and Free Living Will.
10/30 RVRR Halloween pub-crawl New Brunswick
11/3 RUN with the VIKINGS 5K 10:00 AM South Brunswick High School, Bob Tonas good event
11/10 Hashathon 6.6 Mile Cheesequake challenging, dangerous trails, free beer, best post race party with band, 732-542-6090 11am
5. Welcome Fall Law Clerks
Kenneth Vercammen and Associates, P.C. would like to welcome the following Fall Law Clerks.
Taralyn Stokes currently attends Rutgers University and is majoring in Criminal Justice.
Sara Quinlan currently attends Mercer County Community College as part of their Advanced Degree in Paralegal Studies.
Geovonna Parker currently attends New Jersey City University and is currently majoring in Criminal Justice.
Antonia Tur currently attends Mercer County Community College and is in the process of obtaining her Paralegal Degree.
Austin Chen is currently a high school senior attending J.P. Stevens High School.
6. Ken Vercammens Annual Christmas Happy Hour
Friday, December 6, 2013
5:00PM - 7:00PM
703 16th Avenue
Lake Como/ Belmar, NJ 07719
5-7PM Hot & Cold Buffet with carving station
The reduced price Happy Hour is 6-7PM with $1 House Drink, Bud/BudLt draft & House Wine Special
Email Ken Vercammens Law Office so we can put your name on the VIP list for wristbands. VercammenLaw@Njlaws.com
Questions- Call 732-572-0500
Bring a canned food donation for the St. James Food Bank Hands of Hope, continuing providing food and help to individuals in need.