NEW JERSEY LAWYER

DAILY BRIEFING      01/12/2005


News Briefs

EMPLOYMENT LAWYER SWAPS ONE NEWARK OFFICE FOR ANOTHER
Firm-switching is well under way in 2005. Robert H. Bernstein, who represents management in labor relations and employment law matters, along with several members of his former team from the Newark office of Epstein, Becker & Green, have joined the Newark office of Reed Smith. His new firm’s hopes are straightforward. “As the former chair of Epstein Becker’s national labor department steering committee, his national reputation will help us expand our labor and employment presence in several targeted geographic areas and industries, including the pharmaceutical and transportation industries,” said Gregory B. Jordan, Reed Smith's firm-wide managing partner. 1-11-05

ATTORNEY CHARGED WITH MISHANDLING HOLOCAUST VICTIMS’ FUNDS
Livingston attorney Edward Davis Fagan, who helped broker the historic $1.25 billion settlement between Swiss banks and Holocaust victims, has until February to respond to charges he mishandled more than $400,000 of his clients’ money. The complaint filed by the New Jersey Office of Attorney Ethics alleges Fagan virtually emptied the trust account of Auschwitz survivor Gizella Weisshaus, his first client in what became a class-action suit that settled in 1998. He purportedly then sought to replace the funds by using settlement monies he had won for another client. “He stabbed me right in the back,” Brooklyn resident Weisshaus told The Star-Ledger, adding, “He used me. He used my money.” 1-11-05

MOUNT HOLLY TO HOST APPELLATE DIVISION ARGUMENTS
In a departure from regular operating procedures, oral arguments in six appellate cases are being heard Wednesday in Mount Holly’s Old Historic Courthouse. Normally, there are only four locations statewide where appellate arguments are heard: Trenton, Hackensack, Morristown and Atlantic City. In addition, the Appellate Division schedules arguments on the campus of Rutgers Law School-Newark several times a year for the students’ benefit. “By expanding the number of locations where oral arguments are held, we are able not only to accommodate the needs of the attorneys who will present these cases, but also to give additional students and members of the public the opportunity to observe the appellate process,” said Presiding Appellate Judge Edwin H. Stern. Arguments also will be heard March 2 in Mount Holly. 1-11-05

LAWYER PLEADS NOT GUILTY TO DUPING ELDERLY CLIENT
Fairfield attorney Michael A. Casale has pleaded not guilty to allegations he duped his client, Spring Lake widow Madeleine Stockdale, out of her home and fortune in the months before her death. Casale, along with Stockdale’s neighbor Ronald J. Sollitto, was indicted in November on charges including theft by deception and conspiracy for allegedly tricking the elderly woman into making Sollitto the main beneficiary of her will and selling him her seaside home under questionable financial terms. That will was invalidated last year after a protracted legal battle between Sollitto and the Spring Lake First Aid Squad, the beneficiary of an earlier will. Before Monmouth County Judge Ira E. Kreizman, the two men this week contested the criminal allegations as part of a campaign to destroy their reputation. 1-11-05

PHILADELPHIA INITIATES GUN COURT
Frustrated by an inability to stem the tide of illegal handguns on Philadelphia streets, court officials there initiated gun court, dedicated solely to gun possession cases. Common Pleas Court Judge Jeffrey P. Minehart will preside as part of a program designed to remove defendants from the routine legal mill and assign them to a parallel system featuring a more intense level of supervision. Those on probation for gun crimes will meet with probation officers at least once a week instead of monthly, and some will be subject to unannounced home visits, as well as random drug-testing. Most will be required to attend anti-violence or anger management counseling. Minehart, who was a probation officer while attending Temple Law School, will review participants’ compliance. 1-11-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, JANUARY 11, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, JANUARY 11, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, JANUARY 12, 2005.


APPROVED FOR PUBLICATION
REAL PROPERTY
LIBERTY MUTUAL FIRE INSURANCE CO. v. ALEXANDER
Appellate Division, A-1159-03T5, approved for publication January 11, 2005. (19 pages). Facts-on-Call Order No. 92255

Where a property was damaged during a redemption period but after the Sheriff had delivered the deed, the mortgagee was entitled to an award of the insurance proceeds to the extent of its mortgage payoff, and the homeowner was entitled to a credit for the value of the damaged property that the mortgagee had obtained from the subsequent purchaser.

HUSBAND AND WIFE
HESELTON v. MAFFEI
Appellate Division, A-1624-03T1, approved for publication January 11, 2005. (19 pages). Facts-on-Call Order No. 92256

A marital litigant’s obligation to indemnify his former spouse for any liability that she might incur under a mortgage on the former marital home was not discharged in bankruptcy because his bankruptcy petition listed her only as a co-debtor and not as a creditor and therefore failed to give her reasonable notice that his indemnification obligation could be discharged in the bankruptcy proceeding.

DRUNK DRIVING
STATE v. SOLARSKI
Appellate Division, A-5788-02T5, approved for publication January 11, 2005. (11 pages). Facts-on-Call Order No. 92257

A conviction for operating a vessel while intoxicated under N.J.S.A. 12:7-46 is not a conviction for driving while intoxicated under N.J.S.A. 39:4-50. In this case, the defendant, who was convicted of driving while intoxicated in 1987 and of operating a vessel while intoxicated in 1994, should have been sentenced as a second offender and not as a third offender after pleading guilty to driving while intoxicated in 1998.

SENTENCING
STATE v. MITCHELL
Appellate Division, A-6518-02T4, approved for publication January 11, 2005. (7 pages). Facts-on-Call Order No. 92258

Where a 2001 judgment of conviction included a suspended sentence and where, in 2003, the court granted a petition to revoke the suspended sentence and imposed a prison term on the defendant for the crime to which he had entered his guilty plea in 2001, neither the adequacy of the factual basis set forth on the record in 2001 nor the asserted mental status of the defendant at the time of the plea in 2001 could be raised as a basis to attack the imposition of the sentence in 2003.

DOUBLE JEOPARDY
STATE v. COLON
Appellate Division, A-6531-02T4, approved for publication January 11, 2005. (33 pages). Facts-on-Call Order No. 92259

The Appellate Division addressed the recurrent issues that arise from the application of constitutional, statutory, and equitable double jeopardy principles when a Municipal Court prosecution has resulted in pleas of guilty while an indictment arising from the same series of events is pending.

NOT APPROVED FOR PUBLICATION
LAND USE
JOEL TANIS & SONS, INC. v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF FAIR LAWN
Appellate Division, A-6212-02T2, January 11, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17496
Final judgment approving the defendant bus company’s settlement with the defendant Zoning Board and dismissing the plaintiff neighbor’s action in lieu of prerogative writs challenging the settlement affirmed; the settlement enabled the bus company to operate a bus parking and maintenance facility on its leased property; contrary to the plaintiff’s arguments on appeal, (1) the contention that the trial court lacked jurisdiction to approve the settlement, which the plaintiff did not raise before the trial court, was “clearly without merit,” (2) the trial court complied with the procedures outlined in Warner Co. v. Sutton, and (3) the Board’s acceptance of the bus company’s offer to close its existing school bus depot did not require invalidation of the settlement.

LAW AGAINST DISCRIMINATION
K.P. v. DEPTFORD TOWNSHIP BOARD OF EDUCATION
Appellate Division, A-2917-03T2, January 11, 2005, not approved for publication. (19 pages). Facts-on-Call Order No. 17495

Summary judgment for the defendant Board of Education and the defendant high school affirmed in an action arising under the Law Against Discrimination; the plaintiff student alleged that the Board and the school were vicariously liable for her sexual harassment by the defendant track coach, who had asked her to expose her breasts and vagina to him behind the bleachers after practice; contrary to the plaintiff’s argument on appeal, the Board and the school were not liable under Lehmann v. Toys R Us, Inc. and §219 of the Restatement (Second) of Agency because the coach’s actions were outside the scope of his employment and because none of the §219(2) exceptions applied; the Board and the school also were not liable under the “less-restrictive standard” of Gebser v. Lago Vista Indep. Sch. Dist. because there was no evidence that they were aware of the coach’s actions or were “deliberately indifferent” toward the plaintiff.

VERBAL THRESHOLD
DelPIZZO v. TESTA
Appellate Division, A-2436-03T5, January 11, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17497

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court erred (1) because the record was “clear” that the 29-year-old plaintiff had presented “ample” objective, credible medical evidence of an injury arising from the accident, (2) because the plaintiff’s refusal to undergo shoulder surgery might reduce his damages award but did not transform his injury into a self-inflicted one for which no recovery was available, and (3) because the plaintiff’s evidence indicated that his injury had a serious impact on his life where he was unable to continue operating his delivery and painting business and where his ability to maintain his residence and to interact with his wife and child had been limited.

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