Robert DiLullo v. Board of Education of the City of Ocean City & New Jersey Schools Insurance Group, 9/26/25 (#461-25)

461-25
OAL Dkt. No. EDU 04010-25
Agency Dkt. No. 7-1/25
New Jersey Commissioner of Education
Final Decision
Robert DiLullo,
Petitioner,
v.
Board of Education of the City of Ocean City,
Cape May County, and New Jersey Schools
Insurance Group,
Respondents.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL),
the exceptions filed by petitioner pursuant to N.J.A.C. 1:1-18.4, and respondents’ reply thereto,
have been reviewed and considered.
The threshold procedural issue in this case is whether the petition should be dismissed as
untimely pursuant to the 90-day rule, which requires petitions to be filed “no later than the 90 th
day” following notice of the order, ruling, or action being contested. N.J.A.C. 6A:3-1.3(i); Kaprow
v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 582 (1993). 	The 90-day limitation period
“represents a fair and reasonably-necessary requirement for the proper and efficient resolution
of disputes under the school laws.” Kaprow, 131 N.J. at 582. “While the Commissioner has the
discretion to relax the [90-day] rule . . . this extraordinary relief has been reserved only for those
situations where a substantial constitutional issue is presented or where a matter of significant

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public interest is involved, beyond that of concern only to the parties.” Smith v. State-Operated
Sch. Dist. of City of Paterson, OAL Dkt. No. EDU 06076-14, Initial Decision at 6 (Nov. 6, 2014),
adopted, Commissioner Decision No. 491-14 (Dec. 18, 2014).
Petitioner formerly worked as a substitute teacher for the Board. 	On August 3, 2020,
petitioner, through counsel, sought a defense and indemnification from the Board pursuant to
N.J.S.A. 18A:16-6 in a civil lawsuit. On October 6, 2020, New Jersey Schools Insurance Group, the
Board’s insurer, denied petitioner’s request. Thereafter, petitioner’s homeowner’s insurer, High
Point, commenced proceedings in Superior Court seeking a declaration that it did not owe
petitioner a defense or indemnification in the civil lawsuit. Legal counsel provided by High Point
filed an answer to the civil lawsuit on petitioner’s behalf and asserted a cross claim for
indemnification against the Board. In 2021, the Superior Court consolidated the civil case and
the declaratory judgment action. On September 19, 2024, a Superior Court judge ruled that the
court lacked jurisdiction 	over petitioner’s indemnification claim and referred it to the
Commissioner of Education.
Thereafter, on January 16, 2025, petitioner filed the instant action. Respondents moved
to dismiss the petition as untimely. After the matter was transmitted to the OAL, the parties filed
supplemental briefs and participated in oral argument. Ultimately, the Administrative Law Judge
(ALJ) treated the motion to dismiss as a motion for summary decision because no material facts
were disputed. The ALJ granted respondents’ motion for summary decision upon concluding that
the petition was untimely filed. The ALJ reasoned that the petition was neither filed within 90
days of October 6, 2020, nor within 90 days of the Superior Court’s September 19, 2024, order.
The ALJ recognized that N.J.A.C. 6A:3-1.3(f) places the burden on the parties to ensure that orders

3
of transfer, pleadings, and other pertinent papers are forwarded to the Commissioner, and found
that the record was devoid of evidence that the Superior Court ever took steps to transfer the
case to the Commissioner of Education. 	Furthermore, the ALJ did not conclude that it was
appropriate to relax the 90-day filing deadline under the circumstances.
In his exceptions, petitioner argues that: (1) his claims do not arise under school law and
are therefore not subject to the 90-day statute of limitations in N.J.A.C. 6A:3-1.3(i); (2) even if the
90-day deadline applies, the petition was timely filed as of the date of the Superior Court’s Order
of Referral on September 19, 2024; and (3) even if the 90-day deadline applies, it should be
relaxed consistent with N.J.A.C. 6A:3-1.16. In response, the Board argues that the matter clearly
arises under school law, the petition was untimely pursuant to the 90-day rule, and there are no
issues of constitutional dimension or public interest that would warrant relaxation of the filing
deadline.
Upon review, the Commissioner concurs with the ALJ that the petition must be dismissed
pursuant to the 90-day rule because it was not filed within 90 days of the challenged decision.
At the outset, petitioner’s defense and indemnification claim are made pursuant to N.J.S.A.
18A:16-6, a school law. Consequently, the 90-day filing period set forth at N.J.A.C. 6A:3-1.3(i) is
applicable here. The petition should have been filed within 90 days of the October 6, 2020, denial
of petitioner’s defense and indemnification request. 	Petitioner has not alleged that he was
unaware of the October 6, 2020, denial. 	But even if September 19, 2024—the date of the
Superior Court’s order declining to exercise jurisdiction over the defense and indemnification
claim—is utilized to reset the 90-day filing period, petitioner’s January 16, 2025, petition is still
untimely.

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Additionally, the record is devoid of evidence that the Superior Court effectuated a
transfer of this matter to the Commissioner of Education effective September 19, 2024, pursuant
to New Jersey Court Rule 1:13-4; thus, contrary to petitioner’s assertion, Rule 1:13-4 is not
applicable. 	Moreover, petitioner has not offered any compelling reason that would warrant
relaxation of the 90-day limitation period, and none can be gleaned from the record. This matter
does not present a substantial constitutional issue or an issue of significant public interest; thus,
relaxation of the 90-day rule is unwarranted. Finally, to the extent petitioner contests any aspect
of the Superior Court’s September 19, 2024, ruling, he could have sought relief from the
Appellate Division of the Superior Court. N.J. Ct. R. 2:2-3.
Accordingly, the Initial Decision is adopted as the final decision in this matter,
respondents’ motion for summary decision is granted, and the petition of appeal is hereby
dismissed.
IT IS SO ORDERED.1
COMMISSIONER OF EDUCATION
Date of Decision: 	September 26, 2025
Date of Mailing: 	September 29, 2025
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-
9.1. Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days
from the date of mailing of this decision.

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
New Jersey is an Equal Opportunity Employer
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 04010-25
AGENCY DKT. NO. 7-1/25
ROBERT DILULLO,
Petitioner,
v.
CITY OF OCEAN CITY BOARD OF EDUCATION,
CAPE MAY COUNTY AND NEW JERSEY
SCHOOLS INSURANCE GROUP,
Respondent.
___________________________________
A. Michael Barker, Esq., and Greg DiLorenzo, Esq. for petitioner (Barker,
Gelfand, James & Sarvas, P.C., attorneys)
Robert M. Tosti, Esq., for respondents (Flanagan, Barone, & O’Brien, LLC.,
attorneys)
Record Closed: July 2, 2025 	Decided: July 24, 2025
BEFORE CATHERINE A. TUOHY, ALJ:
STATEMENT OF THE CASE
Petitioner, Robert DiLullo, seeks reimbursement of counsel fees and costs against
respondents, City of Ocean City Board of Education (Board) and New Jersey Schools

OAL DKT. NOS. EDU 04010-25
2
Insurance Group (NJSIG) associated with the defense of a civil lawsuit filed against him
arising out of his employment as a substitute teacher at the Ocean City High School
during the 2006-2007 school year pursuant to N.J.S.A. 18A:16-6.
PROCEDURAL HISTORY
The underlying consolidated cases giving rise to the instant petition were pending
in Cape May Superior Court before the Honorable James H. Pickering Jr., J.S.C. under
the consolidated docket CPM-L-95-20. 	By Order, dated September 19, 2024, Judge
Pickering concluded that the court did not have jurisdiction of this matter and that
jurisdiction rested with the Commissioner of Education. Judge Pickering’s September 19,
2024, order stated: “This matter is referred to the Commissioner of Education”.
On January 16, 2025, petitioner then filed with the Commissioner of Education, a
Verified Petition for Legal Defense Costs pursuant to N.J.S.A. 18A:16-6, dated January
7, 2025. Respondent filed a motion to dismiss in lieu of an answer, supporting brief and
certification of counsel dated February 27, 2025, seeking to dismiss the petition as
untimely pursuant to N.J.A.C. 6A:3-1.3(i).
The 	matter 	was 	transmitted 	by 	the 	Department 	of 	Education 	Office 	of
Controversies and Disputes to the Office of Administrative Law (OAL) as a contested
case, where it was filed on March 4, 2025, pursuant to N.J.S.A. 52:14B-1 to 15; N.J.S.A.
52:14F-1 to 13.
Petitioner filed a brief in opposition to the motion to dismiss with Exhibits 1 through
3. 	Respondent filed a Reply Brief dated March 19, 2025, received by the undersigned
April 24, 2025. Respondent filed a supplemental letter brief on April 30, 2025. Petitioner
filed a letter brief, dated June 2, 2025, in response to respondent’s supplemental letter
brief.

OAL DKT. NOS. EDU 04010-25
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Oral argument was conducted on July 2, 2025, and the motion record closed at
that time.
FACTUAL DISCUSSIONS AND FINDINGS
Respondents argument
Respondents argue that they are entitled to summary decision as the petition was
filed more than ninety days after Judge Pickering’s September 19, 2024, ruling, contrary
to the statute of limitations set forth in N.J.A.C. 6A:3-1.3(i). Respondent argues that this
case is one that arises under school law and should have initially been brought before the
Commissioner of Education upon the initial declination of coverage by the board’s insurer.
The insurance policy is specifically geared to New Jersey School Districts and specifically
refers to the school employee indemnification statute, 	N.J.S.A. 18A:16-6 and therefore
this case properly belongs before the Commissioner of Education as it involves a
controversy arising under school law. 	Respondents further argue that the case against
NJSIG, the insurer for the respondent Ocean City Board of Education, is an improper
direct action against NJSIG.
Petitioner’s argument
Petitioner argues that this matter should not be dismissed but be transferred back
to the Superior Court as the Commissioner of Education does not have a primary
jurisdiction over the matter and the N.J.A.C. filing requirements do not apply. Petitioner
contends that its action against NJSIG was a declaratory judgement action in Superior
Court based on an insurance policy provision where petitioner was an “insured.” 	The
Superior Court did not consider petitioner’s summary judgement argument based on the
liability 	coverage 	provision 	and 	erred 	in 	issuing 	the 	September 	19, 	2024, 	order
determining it did not have jurisdiction to decide a question under N.J.S.A. 18A:6-16 and
referred this case to the Commission of Education. Petitioner maintains that the six-year
statute of limitations for declaratory judgement actions controls here and not the ninety-
day limitation set forth in N.J.A.C. 6A:3-1.3(i).

OAL DKT. NOS. EDU 04010-25
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Petitioner further argues that since Judge Pickering’s September 19, 2024, order
referred this matter to the Commissioner of Education, the matter should be deemed filed
with the Commissioner as of that date. 	Also, to the extent that Judge Pickering’s order
stated the Superior Court lacked jurisdiction in this case and that jurisdiction was proper
with the Commissioner of Education, R. 1:13-4(a) preserved the continued viability of
suits filed in the wrong forum.
Petitioner also argues that the direct action against NJSIG is not improper as
petitioner is an insured under the policy and not an injured third party. Petitioner further
argues that even if the ninety-day time period applies, it was waived by respondent as
never having been raised previously.
Finally, petitioner argues that N.J.A.C. 6A:3-1.16 allows for the relaxation of the
rules in the Commissioner’s discretion in any case where a strict adherence thereto may
be deemed inappropriate or unnecessary or may result in injustice.
The following facts are not in dispute and I FIND as follows:
1) Robert DiLullo was employed by the Ocean City Board of Education as a
substitute teacher at Ocean City High School during the 2006 – 2007 school
year.
2) On March 20, 2020, plaintiff M.L. filed a cause of action against DiLullo, Ocean
City High School, Ocean City School District, Ocean City Board of Education,
et. al. in the case docketed as CPM-L-000095-20.
3) M.L. alleged that, in or about the winter and spring of 2007, DiLullo did sexually
groom, contact, abuse and molest plaintiff, who was a minor at the time.

OAL DKT. NOS. EDU 04010-25
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4) By letter, dated August 3, 2020, Robert DiLullo, through counsel, provided
notice to Ocean City Board of Education and the Ocean City School District of
the 	lawsuit 	CPM-L-95-20 	and 	demanded 	a 	defense 	and 	indemnification
pursuant to N.J.S.A. 18A:16-6 for Robert DiLullo.
5) By letter, dated October 6, 2020, the Ocean City defendant’s insurer, third party
defendant NJSIG denied all coverage to DiLullo.
6) The M.L. lawsuit also contained allegations that DiLullo sexually assaulted M.L.
at DiLullo’s private residence during the summer of 2007 when he was not
employed by OCBOE. 	DiLullo’s homeowner’s insurer, High Point, filed a
declaratory judgment action seeking a declaration that they did not owe DiLullo
a defense or indemnification for M.L.’s claims (Docket Number CPM-L-307-20).
7) Legal counsel provided by High Point filed an Answer to the M.L. lawsuit on
behalf of DiLullo and also asserted a crossclaim for indemnification against the
OCBOE.
8) On February 22, 2021, the Court entered an order consolidating the two cases.
9) DiLullo retained Michael Barker, Esq, to represent his interests as an individual
defendant in the consolidated litigation of the declaratory judgement action and
the underlying M.L. lawsuit.
10) On September 19, 2024, Judge Pickering denied DiLullo’s and NJSIG’s cross
motions 	for 	summary 	judgment 	finding 	that 	“This 	court 	does 	not 	have
jurisdiction of the matter; instead, jurisdiction rests with the Commissioner of
Education. This matter is referred to the Commissioner of Education.”
(See Petitioner’s Petition for Legal Defense Costs Pursuant to N.J.S.A. 18A:16-6,
Paragraphs 1, 5, 6, 8, 11, 15, 16, 17, 18 19, 20 and 23.)

OAL DKT. NOS. EDU 04010-25
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No appeal of Judge Pickering’s September 19, 2024, order was filed.
Petitioner filed his Petition for Legal Defense Costs Pursuant to N.J.S.A. 18A:16-
6, dated January 7, 2025, with the Commissioner of Education on January 16, 2025.
LEGAL ANALYSIS AND CONCLUSION
The New Jersey Administrative Code permits the filing of motions to be made in
administrative hearings. N.J.A.C. 1:1-12.1, et seq. A Motion to Dismiss is not specifically
enumerated under the Administrative Code, but an ALJ may proceed in the absence of a
specific regulation in accordance with the New Jersey Court Rules, to achieve “just
results, 	simplicity 	in 	procedure, 	fairness 	in 	administration 	and 	the 	elimination 	of
unjustifiable expense and delay.” N.J.A.C. 1:1-1.3(a). The common method for resolving
a case on the papers in an administrative proceeding, without a hearing, is by a motion
for summary decision under N.J.A.C. 1:1–12.5.
N.J.A.C. 1:1-12.5 provides that summary decision should be rendered “if the
papers and discovery which have been filed, together with the affidavits, if any, show that
there is no genuine issue as to any material fact challenged and that the moving party is
entitled to prevail as a matter of law.” Our regulation mirrors R. 4:46-2(c), which provides
that “the judgment or order sought shall be rendered if the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact challenged and that the moving party
is entitled to a judgment or order as a matter of law.”
A determination whether a genuine issue of material fact exists that precludes
summary decision requires the judge to consider whether the competent evidential
materials presented, when viewed in the light most favorable to the non-moving party, are
sufficient to permit a rational fact finder to resolve the allegedly disputed issue in favor of
the non-moving party. 	Our courts have long held that “if the opposing party offers . . .

OAL DKT. NOS. EDU 04010-25
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only facts which are immaterial or of an insubstantial nature, a mere scintilla, ‘fanciful
frivolous, gauzy or merely suspicious,’ he will not be heard to complain if the court grants
summary judgment.” 	Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)
(citing Judson v. Peoples Bank and Trust Co., 17 N.J. 67, 75 (1954)).
The “judge’s function is not himself [or herself] to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for
trial.” Brill, 142 N.J. at 540 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S.
Ct. 2505, 2511, 91 L. Ed. 2d 202, 213 (1986)). When the evidence “is so one-sided that
one party must prevail as a matter of law,” the trial court should not hesitate to grant
summary judgment. 	Liberty Lobby, 477 U.S. at 251-2, 106 S. Ct. at 2512, 91 L. Ed. 2d
at 214.
I CONCLUDE that this matter is ripe for summary decision since there are no
issues of material fact in dispute and that respondent is entitled to summary decision as
a matter of law as set forth below.
“Under the civil indemnification statute, N.J.S.A. 18A:16-6, a board of education
employee may be indemnified for attorney's fees and costs incurred defending civil
actions arising out of an act or omission that took place in the course and scope of
employment duties.” L.A. v. Board of Education, City of Trenton of Mercer County, 221
N.J. 192, 201-202 (2015).
N.J.S.A. 18A:16-6 provides:
Whenever any civil or administrative action or other legal
proceeding has been or shall be brought against any person
holding 	any 	office, 	position 	or 	employment 	under 	the
jurisdiction of any board of education, including any student
teacher or person assigned to other professional pre-teaching
field experience, for any act or omission arising out of and in
the course of the performance of the duties of such office,
position, employment or student teaching or other assignment
to professional field experience, the board shall defray all

OAL DKT. NOS. EDU 04010-25
8
costs of defending such action, including reasonable counsel
fees and expenses, together with costs of appeal, if any, and
shall 	save 	harmless 	and 	protect 	such 	person 	from 	any
financial loss resulting therefrom; provided that:
a. 	no employee shall be entitled to be held harmless or have
his defense costs defrayed in a disciplinary proceeding
instituted against him by the board or when the employee
is appealing an action taken by the board; and
b. 	indemnification for exemplary or punitive damages shall
not be mandated and shall be governed by the standards
and procedures set forth in N.J.S. 59:10-4.
Any 	board 	of 	education 	may 	arrange 	for 	and 	maintain
appropriate insurance to cover all such damages, losses and
expenses.
In Bower v. Bd. of Educ., 149 N.J. 416 (1997), the Supreme Court addressed the
statutory prerequisite. 	It held that the statute requires “mere proof by a preponderance
of the evidence that the act on which the charges are predicated arose out of and in the
course of performance of the duties of employment.” Id. at 434.
Pursuant to N.J.A.C. 6A:3-1.3(f), “If a matter is transferred to the Commissioner by
a court, the parties shall be responsible for ensuring that the order of transfer, pleadings,
and any other pertinent papers are forwarded to the Commissioner, c/o the Director,
Office of Controversies and Disputes, New Jersey Department of Education, 100 River
View Plaza, PO Box 500, Trenton, New Jersey 08625-0500, either by the court or by the
parties themselves. 	Where the documents filed do not sufficiently conform to the
requirements of this section and N.J.A.C. 6A:3-1.4, the complainant will be asked to
resubmit the matter to the Commissioner in the form of a duly conformed petition of
appeal, to which the respondent(s) will then be directed to file an answer in accordance
with N.J.A.C. 6A:3-1.5.”
N.J.A.C. 6A:3-1.3(i) requires that “The petitioner shall file a petition no later than
the 90th day from the date of receipt of the notice of a final order, ruling, or other action
by the district board of education, individual party, or agency, that is the subject of the

OAL DKT. NOS. EDU 04010-25
9
requested contested case hearing. This rule shall not apply in instances where a specific
statute, regulation, or court order provides for a period of limitation shorter than 90 days
for the filing of a particular type of appeal.”
This regulatory period of limitation set forth in N.J.A.C. 6A:3-1.3(i) has been
approved by the New Jersey Supreme Court as a means of providing “a measure of
repose, an essential element in the proper and efficient administration of the school laws.”
Kaprow v. Berkeley Township Bd. Of Educ., 131 N.J. 572, 582 (1993). 	The limitation
period is jurisdictional, meaning that if it is violated the Commissioner has no jurisdiction
to determine the merits of the petition, with extremely limited exceptions for matters of
constitutional significance or of widespread public interest. 	The regulation has been
widely applied for many years. The ninety-day period begins to run as of the date when
the “plaintiff learns, or reasonably should learn, the existence of that state of facts which
equate in law with a cause of action.” Kaprow, at 587.
DiLullo, through counsel, demanded a defense and indemnification pursuant to
N.J.S.A. 18A:16-6 from the Ocean City Board of Education by letter, dated August 3,
2020. By letter, dated October 6, 2020, the Ocean City Defendant’s insurer NJSIG denied
all coverage to DiLullo. 	Arguably, this petition for defense costs should have been filed
with the Commissioner of Education within ninety days of the October 6, 2020, denial as
required by N.J.A.C. 6A:3-1.3(i), as petitioner then learned of those facts which equate in
law with a cause of action according to Kaprow. 	Nevertheless, Judge Pickering’s
September 19, 2024, order determining that he did not have jurisdiction and that
jurisdiction rested with the Commissioner of Education, required the petitioner to file his
petition with the Commissioner of Education at the very latest, within ninety days of that
triggering event. N.J.A.C. 6A:3-1.3(f) places the burden on the parties of ensuring that the
order of transfer, pleadings and any other pertinent papers are forwarded to the
Commissioner either by the court or the parties themselves. This record is devoid of any
action taken by the Superior Court to effectuate a transfer or of any efforts taken by the
parties to ensure the Superior Court effectuated a transfer of this matter to the
Commissioner of Education. 	What is clear is that Petitioner did not file his petition with

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the Commissioner of Education until January 16, 2025, more than ninety days after the
September 19, 2024, order of transfer. 	Since N.J.A.C. 6A:3-1.3(i) is jurisdictional,
petitioner’s untimely filing is fatal.
I CONCLUDE that petitioner failed to file his petition with the Commissioner in a
timely fashion, and that it was filed outside the allowable ninety days as required by
N.J.A.C. 6A:3-1.3 (a) and (i) and therefore the Commissioner has no jurisdiction to
determine the merits of Mr. DiLullo’s petition. 	I further CONCLUDE that the Board's
motion for summary decision is GRANTED, and the petition is DISMISSED.
ORDER
For the reasons stated above, it is hereby ORDERED that respondent’s motion for
summary decision is hereby GRANTED. Petitioner’s petition is DISMISSED.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This recommended decision may be adopted, modified, or rejected by the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. If the Acting Commissioner of the Department of
Education does not adopt, modify, or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER OF
THE 	DEPARTMENT 	OF 	EDUCATION. 	Exceptions 	may 	be 	filed 	by 	email 	to
ControversiesDisputesFilings@doe.nj.gov or by mail to Office of Controversies

OAL DKT. NOS. EDU 04010-25
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and Disputes, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey
08625-0500. A copy of any exceptions must be sent to the judge and to the other parties.
July 24, 2025
DATE 	CATHERINE A TUOHY, ALJ
Date Received at Agency:
Date Mailed to Parties:
CAT/gd

OAL DKT. NOS. EDU 04010-25
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APPENDIX
EXHIBITS
For Petitioner
Petition for Legal Defense Costs pursuant to N.J.S.A. 18A:16-6 dated January 7,
2025
Brief in opposition to motion to dismiss with attached Exhibits 1 through 3, dated
March 10, 2025
Reply to supplemental letter brief, dated June 2, 2025
For Respondents
Motion to dismiss in lieu of an answer, supporting brief and certification of counsel
dated February 27, 2025
Reply Brief in opposition to petitioner’s opposition brief and in
further support of respondent’s motion to dismiss, dated March 19, 2025, and
received April 24, 2025
Supplemental letter brief, dated April 30, 2025