The Supreme Court has been functioning for months with four Justices, plus Judge Fuentes on temporary assignment. Judge Fuentes is due to retire on September 1. At that time, the Court will lack a quorum, as Article VI, section 2, paragraph 1 provides that five members of the Court shall constitute a quorum. As a result, Chief Justice Rabner today issued an order temporarily assigning Judges Fisher, Sabatino, and Fasciale to the Supreme Court, effective September 1. (Judge Messano, the Chief Judge of the Appellate Division, waived this temporary assignment, according to the order). That...

Metro Marketing, LLC v. Nationwide Vehicle Assurance, Inc., 472 N.J. Super. 132 (App. Div. 2022). As discussed here, the “sham affidavit doctrine” holds that a party opposing summary judgment cannot claim that an affidavit that contradicts the affiant’s prior sworn evidence, such as deposition testimony, creates a genuine dispute of material fact unless there is a legitimate explanation for the affiant’s changed position. Shelcusky v. Garjulio, 172 N.J. 185 (2002), is the leading New Jersey case regarding the doctrine. This opinion by Judge Sabatino addressed the...

DiFiore v. Pezic, 472 N.J. Super. 100 (App. Div. 2022). This opinion by Judge Sabatino exhaustively explored, in three consolidated cases, the issue of “when, if ever, a plaintiff with alleged cognitive limitations, psychological impairments, or language barriers can be accompanied by a third party to a defense medical examination (“DME”), or require that the examination be video or audio recorded in order to preserve objective evidence of what occurred during the examination.” The court was asked to revisit its opinion in B.D. v. Carley, 307 N.J. Super. 259 (App....