Three New Supreme Court Grants of Review

The Supreme Court announced that it will consider three new matters. Two of those involved grants of certification, while the third was an appeal as of right.

The appeal as of right is State v. Fair. The question presented, as phrased by the Supreme Court Clerk’s office, is “Is the portion of the terroristic threats statute, N.J.S.A. 2C:12-3(a), which criminalizes a threat to commit a crime of violence made ‘in reckless disregard of the risk of causing . . . terror,’ unconstitutionally overbroad and did the jury instructions fail to ensure a unanimous verdict?” In an opinion reported at 469 N.J. Super. 538 (App. Div. 2021), and discussed here, the Appellate Division held the statute unconstitutional. The appeal is before the Supreme Court as of right because it presents a substantial constitutional issue, under Rule 2:2-1(a).

The Supreme Court has accelerated this appeal and ordered a peremptory briefing schedule. Any motion for leave to appear as an amicus curiae, which must include the proposed amicus’s merits brief, is to be filed and served by December 22, 2022.

R.M.R. Elevator Company, Inc. v. Broad Atlantic Associates, LLC presents this question, in the context of an appeal from the Law Division’s confirmation of an arbitration award: “Does N.J.S.A. 2A:23B-25(c) require an express agreement for a post-judgment award of attorney’s fees as articulated in Rock Work, Inc. v. Pulaski Construction Co., 396 N.J. Super. 344, 355-57 (App. Div. 2007)? A two-judge panel of the Appellate Division, in an unpublished per curiam opinion, held that the statute does not require a contractual provision allowing fee-shifting. That decision affirmed the ruling of the Law Division that awarded fees to the party that had obtained confirmation of an arbitration award.

Finally, in Pantano v. New York Shipping Association, a personal injury case, the question presented is “Is vicarious liability under the ‘borrowed servant’ doctrine a question of law to be decided by the court or a question of fact reserved for the jury?” In the Law Division, after a jury returned a verdict for plaintiffs, the judge granted a defense motion for judgment under Rule 4:40-1. In an unpublished opinion by a three-judge panel of the Appellate Division, that court reversed the Law Division on that issue.