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Under New Jersey construction law, the New Jersey Consumer Fraud Act applies to most residential and commercial construction projects.  It is applicable to contractors, subcontractors and suppliers.  However, a New Jersey Appeals Court held in a recent decision that architects are not subject to the Consumer Fraud Act because of the “learned professional” exemption.

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Background

The Borough of Caldwell contracted with Cozzarelli Cirminiello Architects, LLC for architectural services including design, construction and rehabilitation of Borough-owned facilities.  CCA’s invoices were approved by municipal officials before being submitted to and approved by the Council before they were paid.  After a new Council was elected, the Borough terminated its contracts with CCA.  Caldwell then sued CCA in the Law Division of the Superior Court of New Jersey in Essex County for breach of contract, unjust enrichment and violation of the New Jersey Consumer Fraud Act. Caldwell claimed that CCA failed to perform its services, failed to produce “products,” failed to support the Borough on construction bids, failed to produce construction documents, double billed the Borough, and billed it above the agreed upon rate.

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Background: Anti-Discrimination Statutes and the Background Circumstances Rule

Title VII of the United States Civil Rights Act of 1964 and the New Jersey Law Against Discrimination both prohibit employers from illegally discriminating against their employees.  Normally the evaluation is straightforward under the McDonnell Douglas Test.  However, in the case of reverse discrimination, i.e., where an employer is accused of discriminating against an employee who is in the majority, New Jersey andpaterson-pd-john-and-andrew-300x183 many Federal courts imposed a higher burden of proof on the employee.  In cases of reverse discrimination, employees in New Jersey state courts and many federal courts had to satisfy the “Background Circumstances Rule,” which requires that the employee prove that he “has been victimized by the unusual employer who discriminates against the majority.”  However, in 2025, the United States Supreme Court unanimously struck down the Background Circumstances Rule in Title VII cases in the case of Ames v. Ohio Department of Youth Services.

The U.S. Supreme Court Steps In

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The New Jersey Appellate Division examined a town’s termination of payments to its former employee under a separation agreement when the employee became employed by another town.

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Alberto Cabrera was the municipal clerk of the Town of Guttenberg, New Jersey.  As so often happens, the parties wished to terminate their relationship.  They entered into a Separation Agreement which provided that Cabrera would stop performing his duties and go on paid leave beginning on August 18, 2022, and the leave would terminate with his retirement on March 31, 2023.  He would be on the payroll and paid his regular salary by the Town through that day.  He would continue to get medical benefits through March 31, 2023.  The Town would also pay him his accrued but unused vacation, sick, compensatory and personal days for 2022 and 2023.  Cabrera agreed to submit a letter requesting this paid leave of absence, which he did the same day.  The Town’s Mayor and Council voted to approve the agreement.  Cabrera inquired about amending the agreement once, but it was never changed in any way.

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The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

The New Jersey Arbitration Act and Federal Arbitration Act generally require enforcement of agreements to arbitrate disputes.  This extends to the enforcement of arbitration agreements in employment contracts.

However, in response to the #MeToo Movement, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.  The EFAA provided:new-york-county-courthouse-1540991328RMS-300x200

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McLaughlin & Nardi is pleased to announce that the Honorable Peter F. Boggia, a retired judge of the Superior Court of New Jersey, will be joining the firm as of counsel.  Judge Boggia will be concentrating his practice on alternative dispute resolution, particularly mediation and arbitration.  His relationship with our attorneys goes back over thirty years to when Frank Nardi served as his intern while Judge Boggia was on the bench, and the judge occasionally agreed with Maurice McLaughlin’s arguments when he appeared before him.photo-jpeg-240x300

Judge Boggia served on the Superior Court bench for more than twenty years in the Civil Division, both as trial judge and acting presiding civil judge, handling complex trials, including class actions, product liability, medical malpractice and serious personal injury claims.  He also helped settle hundreds of civil cases before trial, and instituted the first mediation program in the Bergen County Superior Court.

Prior to his appointment to the Superior Court bench, Judge Boggia served as Law Clerk to the Honorable Arthur J. O’Dea in the New Jersey Superior Court, and as an assistant prosecutor in Bergen County, handling serious criminal cases. He was House Counsel for Liberty Mutual Insurance Company, and in that position tried hundreds of cases and earned the distinction of Certified Trial Attorney.  Judge Boggia sat concurrently as Municipal Judge in the Bergen County communities of Little Ferry, Leonia, Maywood, Bogota, and Fairview, New Jersey.

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The State Board of Examiners, which operates within the New Jersey Department of Education, is the agency charged with licensing New Jersey educators.  It determines educator fitness and issues certifications required for New Jersey teachers and other teaching staff members.  It also has the authority to revoke or suspend certificates in appropriate circumstances.  The New Jersey Supreme Court recently examined the limits of the Board’s authority in the case of In the Matter of the Certificates of Nicholas Cilento, State Board of Examiners, New Jersey Department oftess-225x300 Education.

Background

Nicholas Cilento was a special education teacher with the Woodbridge Township School District.  On May 21, 2019, he was relieved of his teaching responsibilities because it was alleged that he consumed alcohol on school grounds.  Tenure charges were filed in November 2019.  Cilento appealed the charges and after an evidentiary hearing in which Cilento admitted struggling with alcoholism and consuming alcohol on school grounds, an arbitrator upheld charges of conduct unbecoming, violations of state and municipal law, violations of District policy.  The arbitrator imposed a three-month unpaid suspension and reinstatement on a “last chance” basis.

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A New Jersey employment law decision recently examined the effect of a conviction under the newly enacted New Jersey Police Training Act and with the New Jersey Police Training Commission in the case of Garcia vs. New Jersey Police Training Commission. 

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Background

Gregory Gacia was a police officer with the Wharton, New Jersey, Police Department.  As a result of a search of his residence, he was charged with false representations and gun possession offenses.  Thereafter, on November 14, 2022, he entered into a plea agreement whereby he pled guilty to one count of possessing a large capacity ammunition magazine in the fourth degree.  He was sentenced to one year of probation, with the judgment of conviction entered on January 13, 2023.  Garcia appealed his decision to the Appellate Division of the Superior Court of New Jersey, when affirmed his conviction on October 7, 2024.  He thereafter appealed to the Supreme Courts of New Jersey and the United States, both of which refused to hear his appeal.

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New Jersey employment law provides that non-tenured educators must receive written notice that their employment contracts will not be renewed by May 15th or their contracts will be deemed to be renewed for the coming school year.  A New Jersey appeals court recently issued a decision examining the procedure and consequences of the non-renewal of an assistant principal after failing to give her the required timely written notice in the case of Adeyin vs. Board of Education of the City of Orange.supreme-court-building-1209701__340-300x200

Background

Ehimwenma Adeyin was a non-tenured assistant principal at Rosa Parks Community School in Orange, New Jersey.  She began work in 2023, and her contract was renewed for the 2023-2024 school year.  She was permitted to participate in a two-year program to obtain a certificate from the New Jersey Department of Education for the position of principal.

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In New Jesey business law, a person or business may personally guaranty the performance of a third party.  If the third party defaults on its obligations, the party which gave the personal guaranty (the “guarantor”) then becomes liable for the third party’s default.  Different states have different requirements for the enforcement of personal guarantees, however.  On December 2, 2025, thecourthouse-1223280__340-300x200 New Jersey Supreme Court issued an opinion in the case of Extech Building Materials, Inc. vs. E&N Construction, Inc., explaining the requirements of  an enforceable personal guaranty under New Jersey contract law.  The main element is that the guarantor must clearly and unambiguously express its intent to personally guarantee the third-party’s obligation.

Background

E&N Construction, Inc., a construction company, signed a two page agreement with Extech Building Materials, Inc. to purchase construction supplies.  They signed a two page, six paragraph agreement. The sixth paragraph provided:

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New Jersey business law provides that parties to a contract may agree that after closing one party, usually the seller, can have the right to match another offer which a party receives.  This is called a “right of first refusal.”  This most frequently occurs in contracts for the sale of a business or the sale of real estate, but also often occurs in leases and other contracts as well.  A New Jersey appeals court’s decision in the case of PMG New Jersey II, LLC vs Amrit Inc. examined the law regarding New Jersey law regarding contractual rights of first refusal.6-300x225

Amrit, Inc. Buys a Gas Station and a Decade Later Litigation Ensues

The decision explained that in 2012, the parties entered into a into a Motor Fuel Supply Agreement (MFSA) in connection with Amrit, Inc.’s purchase of a gas station in New Brunswick, New Jersey from PMG New Jersey II, LLC.  The MFSA was amended three years later in 2015 to include a provision which provided that if the purchaser received an offer to buy the gas station, PMG had 30 days to give notice that it was exercising its right to purchase the gas station on the same terms and conditions as the new offer; if not it waived this right of first refusal.  The MFSA was later amended to last through 2027.

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