                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-1862-18T1

F.K.,

        Plaintiff-Appellant,
                                          APPROVED FOR PUBLICATION
v.                                                  July 8, 2019

INTEGRITY HOUSE, INC.,                       APPELLATE DIVISION


        Defendant-Respondent,

and

THOMAS LUSCH and MARVIN
DEUPREE,

     Defendants.
____________________________

              Submitted May 20, 2019 – Decided July 8, 2019

              Before Judges Sumners, Mitterhoff and Susswein.

              On appeal from the Superior Court of New Jersey,
              Law Division, Essex County, Docket No. L-2239-16.

              Marc L. Winograd, attorney for appellant.

              Law Offices of Daniel J. Mc Carey, LLC, attorneys
              for respondent (Daniel J. Mc Carey, on the brief).

        The opinion of the court was delivered by

MITTERHOFF, J.S.C. (temporarily assigned).
     Plaintiff F.K. appeals the trial court's December 11, 2018 order granting

summary judgment to defendant Integrity House and dismissing his complaint

with prejudice.   The trial court determined that defendant was entitled to

immunity from plaintiff's negligence action under New Jersey's Charitable

Immunity Act ("the Act"), N.J.S.A. 2A:53A-7 to -11. On appeal, plaintiff

contends that the amount of private contributions received by defendant,

roughly $250,000 or 1.26% of annual revenue, is too insignificant to entitle

defendant to charitable immunity. Having reviewed the record in light of the

applicable legal principles, we conclude that defendant did not present

sufficient evidence to support its entitlement to the affirmative defens e of

charitable immunity. Accordingly, we reverse.

                                       I.

     We glean the following facts from the record.

     Integrity House's stated purpose in its certificate of incorporation is "[t]o

keep former drug addicts drug free."         Integrity House is a tax-exempt

organization under section 501 (c)(3) of the Internal Revenue Code, 26 U.S.C.

§ 501(c)(3). On its 2015 tax return, Integrity House described its mission as

follows: "Integrity House is committed to helping individuals and families

through an effective and measurable system of comprehensive therapeutic




                                                                         A-1862-18T1
                                       2
community addiction treatment and recovery support in a way that brings

about positive, long-term lifestyle change."

      As alleged in his complaint, plaintiff was a resident at the Integrity

House residential drug-treatment facility in Newark. On November 3, 2015,

he sustained personal injuries when he slipped and fell due to a wet condition

on an interior staircase within the facility. Plaintiff filed a complaint alleging

Integrity House was negligent in the maintenance of the premises.

      Integrity House answered the complaint, asserting, among other

defenses, the affirmative defense of charitable immunity. Before the close of

discovery, Integrity House moved for summary judgment on the ground of

charitable immunity. In support of its motion for summary judgment, Integrity

House submitted its 2015 tax return. 1

      Integrity House reported $20,094,046 in total revenue for the 2015 tax

year. According to Part VII, "Statement of Revenue," Integrity House received

$15,355,805 from government grants, 2 $157,310 from fundraising events, and

$296,409 from "[a]ll other contributions, gifts, grants, and similar amounts not

1
  Specifically, Integrity House filed a Form 990 "Return of Organization
Exempt from Income Tax."
2
  Integrity House received $12,036,891 from the New Jersey Department of
Human Services, $1,114,993 from Hudson County, and $1,502,370 from the
New Jersey Department of Children and Families.



                                                                         A-1862-18T1
                                         3
included above."      Integrity House also reported $4,261,364 in "program

service revenue." 3    With regard to the fundraising revenue and private

contributions, Schedule G, Part II, "Fundraising Events," specifies that

Integrity House received $252,855 in "gross receipts" from two fundraising

events4 and $157,310 in "contributions" from those events.

      After hearing oral argument on May 12, 2017, the trial court issued an

order and written opinion denying the motion for summary judgment. The

trial court concluded that while Integrity House's 2015 tax return appeared to

show that it received roughly $250,000 in contributions, the record did not

conclusively "reveal the source of those funds and how they were utilized."

The trial court noted that there was still one month before the discovery end




3
   The tax return further delineates the "program services revenue" as follows:
$1,553,390 from Work First NJ/SAI; $900,730 from welfare and food stamp
revenue; $286,721 from federal probation program fees; $83,049 from the
intensive supervision program; $1,307,168 from other program related
revenue; and $130,306 from all other program service revenue. In support of
its motion for summary judgment, Integrity House did not submit evidence
detailing the fee structure for its programs, including whether any of its
programs are offered at no or reduced cost or whether it bills medical
insurance providers.
4
   These events are listed as "Gala" and "Golf." There is no evidence in the
summary judgment record detailing Integrity House's specific fundraising
efforts in the 2015 tax year.



                                                                       A-1862-18T1
                                      4
date and determined that Integrity House's source of funds remained a disputed

factual issue.

      After the close of discovery, Integrity House re-filed its motion for

summary judgment. The renewed motion added only short certifications of

Integrity House's CEO and CFO stating that all of the roughly $252,000 in

"gross receipts" raised from fundraising for the 2015 tax year were used in

furtherance of Integrity House's charitable purposes.

      In opposition to defendant's renewed motion for summary judgment,

plaintiff submitted a report from a forensic accounting expert analyzing the

2015 tax return. In pertinent part, the expert concluded:

             I have looked at the financial documents and have
             highlighted certain pages and line items. Annexed
             hereto as Exhibit A is page one of Integrity House's
             2015 Form 990. This page reports total revenues
             received of $20,094,046 for 2015 but the [d]efendant
             in its brief makes no mention of this amount.

             With regard to the "charitable contribution of almost
             $300,000 for the calendar year," attention is directed
             to Schedule G. Part II, Fundraising Events, annexed
             hereto as Appendix B. On that page, the sum of
             $252,855 is reported as gross receipts from
             fundraising events and the sum of $157,310 is
             reported as contributions. The [d]efendant in his brief
             provides absolutely no explanation as to the source of
             the funds for either of these amounts. As a forensic
             accountant,     without      supporting    third-party
             documentation, I cannot determine whether these
             funds were obtained from a government or private
             source.

                                                                       A-1862-18T1
                                       5
            With regard to the certification of [Integrity House's
            CFO], I note that she provides absolutely no
            information regarding the source of Integrity House's
            revenue in the year 2015.           She provides no
            explanation regarding the source of the $20,094,046
            received by Integrity House during that year and she
            provides absolutely no analysis regarding the source
            of the $252,855 reported as gross receipts and no
            analysis of the $157,310 reported as contributions. It
            appears that all she attempts to do in her certification
            is justify Integrity House's expenditures.          Her
            certification does not enable me, as a forensic
            accountant, to determine whether these funds were
            obtained from a government or private source. The
            certification of [Integrity House's CEO] provides
            absolutely no information in this regard as well.

            Conclusion
            In my professional opinion and to a reasonable degree
            of certainty in the field of forensic accounting,
            Integrity House has failed to provide an analysis of the
            source of its funds for the year in which the November
            3, 2015 accident took place. Based on the information
            provided by Integrity House, there is absolutely no
            documentation which would facilitate a determination
            of the funding sources.

Without hearing further oral argument, the trial court entered an order granting

summary judgment on October 27, 2017.

      Plaintiff appealed, and we vacated the dismissal order and remanded for

further proceedings because the trial court failed to issue an oral or written

reasoning for its conclusion that Integrity House was entitled to chari table

immunity. F.K. v. Integrity House, No. A-1376-17 (App. Div. October 26,




                                                                        A-1862-18T1
                                       6
2018). On remand, the trial court issued an order and written opinion granting

summary judgment on December 11, 2018. 5

      In its written decision, the trial court determined that Integrity House

established the three elements necessary for charitable immunity:       that the

organization "(1) was formed for nonprofit purposes; (2) is organized

exclusively for religious, charitable or educational purposes; and (3) was

promoting such objectives and purposes at the time of the injury to plaintiff

who was then a beneficiary of the charitable works." Tonelli v. Bd. of Educ.

of Wyckoff, 185 N.J. 438, 444-45 (2005) (quoting Hamel v. State, 321 N.J.

Super. 67, 72 (App. Div. 1999)).

      The trial court found that Integrity House satisfied the first prong based

upon its incorporating documents and status as a non-profit organization as

defined in Section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. §

501(c)(3).   In so holding, the trial court rejected plaintiff's reliance on

Abdallah v. Occupational Ctr. of Hudson Cty., Inc., 351 N.J. Super. 280 (App.

Div. 2002) and contention that Integrity House received too small a portion of

its funding from private contributions. The trial court reasoned: "The [c]ourt's

opinion in [Morales v. N.J. Acad. of Aquatic Scis., 302 N.J. Super. 50 (App.


5
  The trial court did not allow for new submissions or hold oral argument on
remand.


                                                                        A-1862-18T1
                                       7
Div. 1997)] is clear that a receipt of government funds, even if that

encompasses the majority of an entity's funding, does not eliminate an entity's

protection under the Charitable Immunity Act." 6

        The trial court found that Integrity House met the second prong,

reasoning:

              Defendant Integrity House has presented extensive
              evidence that it does not merely distribute government
              funds, but provides actual services to individuals,
              including housing and counseling. The [c]ourt finds
              that the [d]efendant Integrity House has satisfied the
              second prong of the analysis required under N.J.S.A.
              2A:53A-7, having demonstrated that is organized for
              religious, charitable or education purposes, as
              evidenced by their statement of purpose, as well as the
              services they provide.

        Finally, the trial court concluded that Integrity House satisfied the third

prong because plaintiff was a resident at Integrity House's drug treatment

facility at the time of the accident.

        Accordingly, the trial court issued an order granting summary judgment

and dismissing plaintiff's complaint with prejudice.

                                         II.

        On appeal, plaintiff challenges only the trial court's determination as to

the second prong of the charitable immunity analysis. He argues that the

6
    As discussed below, this analysis actually falls under the second prong.



                                                                          A-1862-18T1
                                         8
$252,855 in private contributions, comprising 1.26% of Integrity House's total

revenue in the 2016 fiscal year, is too insignificant to establish that Integrity

House is organized exclusively for charitable purposes and to entitle it to

immunity under the Act.

        Integrity House counters that "no statute or court in this State has

provided precise guidelines regarding the exact percentage of revenue derived

from charitable sources required to confer charitable status." It maintains that

the $252,855 in gross receipts and the $157,310 7 in contributions, comprising

2.04% of its 2016 revenue, are "sufficient for Integrity House to establish that

it is entitled to charitable immunity protection because, unlike the defendant in

Abdallah, Integrity House actively pursued these funding sources and the

funds directly supported its charitable endeavors."

                                         A.

        We review a grant of summary judgment de novo, applying the same

standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320,

330 (2010).       Summary judgment must be granted 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

7
    It appears that Integrity House mistyped this sum as $157,855 in its brief.


                                                                          A-1862-18T1
                                         9
matter of law." R. 4:46-2(c). The court considers whether "the competent

evidential materials presented, when viewed in the light most favorable to the

non-moving party, are sufficient to permit a rational factfinder to resolve the

alleged disputed issue in favor of the non-moving party." Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

      "The trial court's conclusions of law and application of the law to the

facts warrant no deference from a reviewing court." W.J.A. v. D.A., 210 N.J.

229, 238 (2012) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995)). Accordingly, "[a] trial court's determination of the

applicability of charitable immunity is reviewed de novo because an

organization's right to immunity raises questions of law." Green v. Monmouth

University, 237 N.J. 516, 529 (2019).

                                        B.

      The Supreme Court recently recounted the history of charitable

immunity in New Jersey:

            New Jersey's doctrine of charitable immunity was first
            declared "as a judicial expression of [New Jersey's]
            public policy" in D'Amato v. Orange Memorial
            Hospital, 101 N.J.L. 61 (E. & A. 1925), but was
            expressly repudiated by this Court in Collopy v.
            Newark Eye & Ear Infirmary, 27 N.J. 29 (1958), as
            lacking historical foundation and contrary to "modern
            concepts of justice."




                                                                       A-1862-18T1
                                        10
      The Legislature immediately responded by passing a
      precursor to the Charitable Immunity Act and, a year
      later, the Act itself. Through that legislation, "'the
      common law doctrine as it had been judicially defined
      by the courts of this State' was restored."

      The Charitable Immunity Act's "original purpose was
      to avoid the diversion of charitable trust funds 'to non-
      charitable purposes in order to live up to the
      reasonable expectations of the benefactors.'" "Over
      time, however, our case law has recognized that the
      purposes underlying charitable immunity are broader
      than simply preserving charitable trust funds and
      include the encouragement of altruistic activity" by
      limiting the economic impact of litigation on charities.

      [Green, 237 N.J. at 529-30 (alteration in original)
      (citations omitted).]

The Act provides that

      [n]o nonprofit corporation, society or association
      organized exclusively for religious, charitable or
      educational purposes or its trustees, directors, officers,
      employees, agents, servants or volunteers shall . . . be
      liable to respond in damages to any person who shall
      suffer damage from the negligence of any agent or
      servant of such corporation, society or association,
      where such person is a beneficiary, to whatever
      degree, of the works of such nonprofit corporation,
      society or association . . . .

      [N.J.S.A. 2A:53A-7(a).]

The Legislature directed that the Act

      shall be deemed to be remedial and shall be liberally
      construed so as to afford immunity to the said
      corporations, societies and associations from liability
      as provided herein in furtherance of the public policy

                                                                   A-1862-18T1
                                 11
              for the protection of nonprofit corporations, societies
              and associations organized for religious, charitable,
              educational or hospital purposes.

              [N.J.S.A. 2A:53A-10.]

Nonetheless, "[o]nly those classes of entities that were immunized under

common law remain within the sweep of the Act.            However, as to those

entities, the several provisions of the Act should be liberally construed to

afford immunity."      Tonelli, 185 N.J. at 444; see also Hardwicke v. Am.

Boychoir Sch., 188 N.J. 69, 98 (2006) ("[A]lthough N.J.S.A. 2A:53A-10 states

that [the Act] 'shall be liberally construed,' we must consider the scope of that

common law when interpreting the scope of the immunities provided in the

statute.").

                                        C.

      "Charitable immunity is an affirmative defense, as to which, like all

affirmative defenses, defendants bear the burden of persuasion." Abdallah,

351 N.J. Super. at 288. As stated above, an entity seeking charitable immunity

must establish that it "(1) was formed for nonprofit purposes; (2) is organized

exclusively for religious, charitable or educational purposes; and (3) was

promoting such objectives and purposes at the time of the injury to plaintiff

who was then a beneficiary of the charitable works." Tonelli, 185 N.J. at 444-

45 (quoting Hamel, 321 N.J. Super. at 72).



                                                                        A-1862-18T1
                                        12
      With regard to the second prong, "neither non-profit status nor the

performance of socially useful services, either independently or together, are

dispositive of charitable status." Abdallah, 351 N.J. Super. 283-84. "Whether

a nonprofit entity, whose certificate of incorporation and by-laws provide that

it is organized exclusively for charitable, religious, educational, or hospital

purposes, actually conducts its affairs consistent with its stated purpose often

requires a fact-sensitive inquiry." Kuchera v. Jersey Shore Family Health Ctr.,

221 N.J. 239, 252 (2015). "What is required is an examination of the entity

seeking to clothe itself in the veil of charitable immunity to discover its aims,

its origins, and its method of operation in order to determine whether its

dominant motive is charity or some other form of enterprise." Parker v. St.

Stephen's Urban Dev. Corp., Inc., 243 N.J. Super. 317, 325 (App. Div. 1990).

      Because "[b]oth 'educational' and 'religious' have a limited and

commonly understood meaning . . . [but] 'charitable' is a more complex notion

that defies precise definition[,]" the Court has prescribed distinct inquiries for

organizations seeking immunity for educational or religious purposes and

organizations seeking immunity for charitable purposes. Ryan v. Holy Trinity

Evangelical Lutheran Church, 175 N.J. 333, 343 (2003). "Entities that can

prove they are organized exclusively for educational or religious purposes

automatically satisfy the second prong of the charitable immunity standard"



                                                                         A-1862-18T1
                                       13
and "no further financial analysis is required to satisfy the second prong of the

Act." Id. at 346.

      In contrast, for an entity asserting that it is organized for charitable

purposes, a reviewing court must conduct a "source of funds assessment" to

discern whether a charitable purpose is being fulfilled. Ibid.; Abdallah, 351

N.J. Super. at 284 (noting that the source of funds analysis "looks beyond the

organization's non-profit structure and social service activities" and "must take

into account the organization's source of funds as a critical element of

charitable status."). In this regard, "an organization claiming immunity under

the Act must demonstrate some level of support from charitable donations

and/or trust funds as it is those sources of income the Act seeks to protect."

Bieker v. Cmty. House of Moorestown, 169 N.J. 167, 178 (2001) (emphasis

added); see also Morales, 302 N.J. Super. at 56 (noting that the defendant

"receive[d] a substantial amount of charitable contributions, which is one of

the essential characteristics of a non-profit corporation entitled to charitable

immunity." (footnote omitted)).

      In the seminal case of Parker, Justice Long, then an Appellate Division

judge, explained that an entity asserting a charitable purpose must show it

"undertak[es] acts by which the government is relieved pro tanto from a

burden it would otherwise have to perform." 243 N.J. Super. at 326. In that



                                                                        A-1862-18T1
                                       14
case, we reversed a grant of charitable immunity to a nonprofit corporation

established by St. Stephen's A.M.E. Zion Church to serve "as a conduit for

federal mortgage money and for federal rent subsidies" to fund a low and

moderate income housing complex. Id. at 325. We reasoned that the entity

"was not created to lessen the burden on government but to obtain as much

funding from the government as possible and to operate the project exclusively

with that funding. As such, it is no more entitled to charitable immunity than

the government itself."    Id. at 326.        We also emphasized that "[e]qually

important is the absence from defendant's operation of fund-raising activities

and charitable contributions." Ibid.

      Similarly, in Abdallah, we reversed a grant of charitable immunity to an

occupational center that provided training and job placement for vocationally

disabled individuals because it received the vast majority of its funding

through governmental grants and payments from employers for subcontracted

labor. 351 N.J. Super. at 287-88. We found that annual private contributions

amounts of $48,000, or less than one-and-one-half percent of the total revenue,

and $3,000, or less than one-tenth of one percent of total revenue, were "too

insignificant to have any effect on the charitable-status determination." Id. at

288. We also were "concerned that what is disclosed by the record and our

inferences and assumptions therefrom may not constitute a sufficiently



                                                                        A-1862-18T1
                                         15
complete or fair picture of the entirety of the [defendant's] operation." Ibid.

For these reasons, we found that the defendant had failed to carry its burden to

establish charitable immunity. Ibid.

      The Supreme Court also has denied charitable immunity to purported

charitable organizations.    See Kuchera, 221 N.J. at 254-55 (rejecting a

contention that an outpatient facility owned by a nonprofit hospital was

organized for charitable purposes based on its provision of charity care and

holding that the organization was entitled only to limited liability for hospitals

under N.J.S.A. 2A:53A-8); Tonelli, 185 N.J. at 450 (holding that a township

school board was not entitled to charitable immunity because it was "not

supported by charitable contributions, philanthropic activity or a spirit of

altruism[,]" was funded solely by public funds, did not "relieve[] the

government of the need to provide beneficent services[,]" and was "an

instrumentality of the State itself[.]"); Bieker, 169 N.J. at 179-80 (remanding

for consideration of whether a community center received too great a quant ity

of income from the rental of its facilities to for-profit entities so as to render

the organization's primary purpose non-charitable).

      Nonetheless, "the acceptance of government funds and some measure of

government control does not transform a private non-profit corporation into a

governmental instrumentality."     Morales, 302 N.J. Super. at 55; see also



                                                                         A-1862-18T1
                                       16
Estate of Komninos v. Bancroft Neurohealth, Inc., 417 N.J. Super. 309, 325

(App. Div. 2010) (noting that "the percentage figure [of private contributions]

does not rigidly dictate the analysis of charitable status."). Accordingly, we

affirmed the grant of charitable immunity to New Jersey Academy of Aquatic

Sciences, which operated the New Jersey State Aquarium, even though "the

State provide[d] support to the Academy by leasing the Aquarium and its

facilities for a nominal rent . . . [and] exercise[d] control over certain aspects

of its operations[.]"   Morales, 302 N.J. Super. at 55.      We noted that the

organization "received $4,012,383 in contributions and grants, which

constituted more than 40% of its total revenues." Id. at 56 n.1.

      Notably, in 1993 the Law Division held that Integrity House was entitled

to charitable immunity in a published opinion in Pelaez v. Rugby Labs., Inc.,

264 N.J. Super. 450 (Law Div. 1993). In that case, the court discussed the

following evidence of Integrity House's funding:

            Lorraine Brown, an employee of Integrity House
            familiar with its funding, was deposed. Ms. Brown
            testified that Integrity House raises private
            contributions through various fund-raising activities.
            Contributions are raised by submitting proposals to
            various private foundations, conducting car wash
            operations, soliciting advertisements for a graduation
            journal, and soliciting donations from churches in
            exchange for work performed at those churches by
            Integrity House patients.




                                                                         A-1862-18T1
                                       17
            Integrity House tax returns for 1988 revealed that out
            of a total funding of $3,027,009 defendant Integrity
            House      received   $2,550,870     (84.3%)     from
            governmental grants, and $476,139 (15.7%) from
            public support of various organizations, foundations
            and individuals. Public support income consisted of
            $308,452 (10.2%) worth of in-kind contributions and
            $167,687 (5.5%) from monetary contributions.

            In 1989, Integrity House tax returns revealed that out
            of a total funding of $4,112,706 Integrity House
            received $3,398,425 (82.6%) from governmental
            grants and $714,281 (17.4%) from public support.
            Public support in 1989 consisted of $377,671 (9.2%)
            worth of in-kind contributions and $336,610 (8.2%)
            from monetary contributions.

            [Id. at 453-54.]

      Relying on this evidence, the Law Division distinguished Integrity

House's funding from that of the housing organization in Parker. Id. at 457-58.

The court reasoned, "[d]espite plaintiff's argument that private contributions

made up only a small portion of defendant's revenues, tax records indicate that

Integrity House relies on private charitable contributions to operate this drug

rehabilitation center, and accordingly lessens the government burden of

providing such funding." Id. at 457. Whereas the organization in Parker did

not engage in fundraising activities, the Law Division found that the record

supported that Integrity House "made substantial efforts to obtain funding from

private sources." Id. at 458.




                                                                       A-1862-18T1
                                      18
                                       D.

      Having carefully reviewed the summary judgment record in light of the

above legal principles, we conclude that Integrity House failed to sustain its

burden to prove entitlement to charitable immunity. Accordingly, the tria l

court improvidently granted summary judgment.

      Initially, we note that the parties dispute the percentage of total revenue

that Integrity House receives from private charitable contributions.       In his

appellate brief, plaintiff relies on $252,855 designated as "gross receipts" as

the figure for Integrity House's total private contributions for the 2015 year. In

contrast, Integrity House relies on both the $252,855 designated as "gross

receipts" and the $157,310 designated as "private contributions" for a total of

$410,165 in total contributions. Using plaintiff's figure, the $252,855 in "gross

receipts" represents 1.26% of Integrity House's total revenue. Using Integrity

House's figure, the $410,165 in total private contributions represents 2.04% of

Integrity House's total revenue.

      Based on the summary judgment record, particularly the unrebutted

forensic accounting expert report, we are unable to conclusively determine

which figures should be used in the charitable immunity analysis.           More

broadly, as the trial court found in its initial order and decision denying




                                                                         A-1862-18T1
                                       19
summary judgment, the record does not allow for a conclusive determination

as to the source and use of Integrity House's funding. 8

      Because Integrity House did not submit sufficient evidence to

substantiate the source and use of its funding, we find that Integrity House did

not present sufficient evidence to support its burden of persuasion on the

affirmative defense. See Abdallah, 351 N.J. Super. at 288. In addition to

failing to provide evidence to assist in analyzing its tax return and determining

the percentage of funds received from charitable contributions, Integrity House

did not submit any evidence to: (1) specify the fee structure for its services;

(2) detail its fundraising efforts beyond the indication on its tax return t hat it

held a golf event and a gala event; (3) rebut plaintiff's forensic accounting

expert's report; or (4) substantiate that its public service efforts relieved the

government of a burden.

      The Law Division's decision in Pelaez is thus factually distinguishable

from the instant matter.      Most notably, both the gross sums of private

8
   Integrity House failed to certify specifically as to the amount of private
charitable contributions or present its own accounting expert. As plaintiff's
expert found, the CEO's and CFO's certifications added nothing regarding the
source of funding to the record after the trial court initially denied summary
judgment on the grounds that Integrity House had failed to provide a sufficient
analysis as to the source of its funds. Instead, the CEO's and CFO's
certifications only state that the $252,855 in gross receipts from fundraising
events was all spent in advancement of Integrity House's charitable proposes.



                                                                          A-1862-18T1
                                        20
contributions and percentages of total revenue in 1988 ($476,139; 15.7%) and

1989 ($714,281; 17.4%) are substantially greater than the figures presented in

this case.   See Pelaez, 264 N.J. Super. at 454.     Moreover, the employee's

deposition provided specific evidence of the fundraising activities undertaken

by Integrity House. See id. at 454-55. By contrast, in this case, Integrity

House has not submitted certifications or any evidence other than its 2015 tax

return detailing its fundraising efforts or supporting that it relies on private

charitable contributions for any of its programs.

      Unlike Pelaez, the current record does not establish that Integrity House

"actively seeks private contributions and derives a substantial amount of

income from private contributions." Id. at 457. Considering the fact-specific

nature of the analysis of the second prong under the Act, see Kuchera, 221 N.J.

at 252, Integrity House cannot rely on the Law Division's decision based on

financial data from roughly twenty years ago.

      In addition, although a determination of the specific percentage of

funding Integrity House receives from private contributions is not necessary

for our analysis, we note for completeness that no published case has granted

charitable immunity to a non-religious, non-educational entity with such a

small portion of funding from private contributions. The closest precedent

with respect to the small percentage of private contributions is Komninos, but



                                                                        A-1862-18T1
                                       21
that case is distinguishable because we determined that the defendant group

home fulfilled an educational purpose, obviating the need to conduct a source

of funds analysis. See Komninos, 417 N.J. Super. at 325 ("Moreover, for the

reasons we have already expressed, [the organization's] immunized status is

established by its core educational purposes.").

      Using either plaintiff's or defendant's figures, the percentage of private

contributions received by Integrity House seems too nominal to advance the

underlying purpose of the doctrine to protect and encourage private charitable

contributions. See Abdallah, 351 N.J. Super. at 285 ("[T]here is agreement

that [the doctrine's] underlying purpose and rationale have always been t he

protection and encouragement of private philanthropy both to assure the

continued provision of beneficent services and to relieve government of the

burden of providing them."). Viewing the summary judgment record in the

light most favorable to plaintiff, the substantial sum of government funding

received by Integrity House, $15,355,805 or over three-fourths of its 2015

fiscal year total revenue, allows for the reasonable inference that it is

attempting to maximize the amount of governmental funding it can receive in a

fashion similar to the goals of the housing organization in Parker.

      Ultimately, Integrity House bears the burden of persuasion on its

affirmative defense of charitable immunity, Abdallah, 351 N.J. Super. at 288,



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and we must view the evidence in the light most favorable to plaintiff. Brill,

142 N.J. at 540. Judged against these standards, we conclude that the trial

court erred in determining that Integrity House was entitled to charitable

immunity.

      Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.




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