NEW JERSEY LAWYER

DAILY BRIEFING      01/12/2006


News Briefs

C’MON DOWN
For the first time ever, the New Jersey State Bar Association will be joining other influential organizations at the annual New Jersey State Chamber of Commerce train trip to Washington. The bar will hold a free reception for all members of the state’s largest lawyer organization and many of the Garden State’s most prominent federal and state politicians and business leaders. The State Bar is characterizing its Feb. 2 reception at the Marriott Wardman Park Hotel in the nation’s capital as having the potential for a “unique networking opportunity.” More than 1,500 people are expected to attend the chamber’s event, including a dinner honoring the state’s congressional delegation, which will be followed by the NJSBA’s reception. 1-11-06

GOLFER ACES HOLE, SUES BAR GROUPS FOR PRIZE CAR
When it comes to matters legal, it’s always important to read the fine print — and the big print. That’s the tough lesson for an amateur golfer and organizers of a golf outing sponsored by three county bar associations now locked in a lawsuit. Joseph McDonald has sued the Raritan Valley Country Club and the Hunterdon, Somerset and Warren county bar associations for breach of contract and fraud for failing to deliver the 2005 Ford 500 he thought he won last June. The insurance policy the lawyers groups purchased to cover the 1-in-15,000 chance that someone would score a hole-in-one was for a different hole. The policy was for the par-3, 205-yard 6th hole; McDonald’s shot was in the par-3, 152-yard 7th hole. To McDonald, all indications were that No. 7 was the winning hole. An announcement was made, a sign was posted and a witness was waiting at No. 7. He was photographed in front of the car holding a certificate. Steve Kalafer, owner of the dealership that was to donate the vehicle, also is being sued and claims the bar associations ignored the rules and regulations they had agreed to in writing. “It’s another case of lawyers gone wild,” said Kalafer. 1-11-06

THIRD CIRCUIT UPHOLDS ARBITRATION IN BANKRUPTCY CASE
The 3rd U.S. Circuit Court of Appeals has ruled a U.S. Bankruptcy Court decision to deny enforcement of an arbitration clause was improper. In In re Mintze, circuit Judge Jane R. Roth noted the Federal Arbitration Act mandates enforcement of arbitration when applicable unless there is a contrary intent by Congress. Roth said the Chapter 13 bankruptcy petition had failed to show through the text, history or underlying purposes of the Bankruptcy Code “that Congress intended to preclude waiver of judicial remedies of her claims.” The case involved a consumer who entered into a loan agreement that contained an arbitration clause. (A full text of Mintze, Facts-on-Call Order No. 92804, can be ordered from NJL Online or by calling 800-670-3370.) 1-11-06

CALIFORNIA SUPREME COURT TO RULE IN DISCRIMINATION CASE
It’s another spinoff from the U.S. Supreme Court ruling in the New Jersey case several years ago that the Boy Scouts have the right to bar an admitted gay scout leader. Now, the California Supreme Court is reviewing whether the city of Berkeley, viewed in the 1960s as the home of the “free speech movement,” violated the First Amendment rights of a group connected to the Boy Scouts of America. The Berkeley Sea Scouts, which teaches sailing, carpentry and plumbing to boys, sued the city after it revoked free berthing the group received the past 50 years at the Berkeley Marina. Citing its 1997 policy of providing free berthing only to nonprofits without membership discrimination policies, the city halted the benefit because the Boy Scouts bar atheist and gay members. The Berkeley Sea Scouts maintains it doesn’t discriminate despite its affiliation with the Boy Scouts. The case challenges withholding or removing public subsidies from groups whose policies and ideals are different from the government. The justices heard oral arguments this week and will rule within 90 days. 1-11-06

EVIDENCE OF EAR LOBE DIFFERENCES ADMISSIBLE
As viewers of the popular television show “CSI: Crime Scene Investigation” are familiar, evidence of blood, fingerprints, fibers and DNA often have made the difference between a jury’s finding of guilt or innocence. In a twist on an old science — the comparison of body parts — evidence of differences in human ear lobes is being admitted in court. U.S. District Judge Gene E.K. Pratter in the Eastern District of Pennsylvania has ruled Janet Monge, a University of Pennsylvania Museum forensic anthropologist, is an expert and can testify in the case of a man accused of bank robbery. While the science is old, the technology now available — better surveillance videos and computer enhancements — aids comparisons. 1-11-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, JANUARY 11, 2006
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, JANUARY 11, 2006:

ENVIRONMENTAL LAW
IN RE FRESHWATER WETLANDS STATEWIDE GENERAL PERMITS
New Jersey Supreme Court, A-115, January 11, 2006. (32 pages). Facts-on-Call Order No. 92800

The neighboring property owners who challenged the issuance of a General Permit Number 6 by the Department of Environmental Protection to fill “isolated” wetlands were not entitled to a trial-type hearing before the Office of Administrative Law, and the DEP’s administrative review procedures for the issuance of a freshwater wetlands permit satisfy traditional notions of due process. This is a companion case to In re NJPDES Permit No. NJ0025241 Issued to Asbury Park City.

ENVIRONMENTAL LAW
IN RE NJPDES PERMIT NO. NJ0025241 ISSUED TO ASBURY PARK CITY
New Jersey Supreme Court, A-116, January 11, 2006. (23 pages). Facts-on-Call Order No. 92801

The Department of Environmental Protection did not err by denying the request of an organization devoted to environmental interests, which sought “party” status under N.J.S.A. 58:10A-7e of the Water Pollution Control Act, for a hearing in connection with a municipality’s application to renew its pollution discharge permit. Based on the DEP’s responses to the organization’s comments, there were no adjudicative facts at issue, and the organization’s reasons for seeking party status did not merit an adjudicatory hearing. This is a companion case to In re Freshwater Wetlands Statewide General Permits.

THE SUPREME COURT has announced that it will release opinions in STATE v. NESBITT, A-114, and NOTTE v. MERCHANTS MUTUAL INSURANCE CO., A-19, on January 12, 2006. The issue on appeal in Nesbitt addresses whether the State’s expert could testify in a criminal trial on drug charges as to his personal opinion that a hypothetical transaction like the one observed in this case fits a pattern of drug transactions. The issue on appeal in Notte addresses whether Rule 4:9-3 allowed the plaintiff to amend her original complaint, which was time-barred by the one-year statute of limitations for claims under the Conscientious Employee Protection Act, by adding claims under the Law Against Discrimination that were timely only if they “relate back” to the date that the original complaint was filed.



APPROVED FOR PUBLICATION
PUBLIC EMPLOYMENT
MOORE v. BOARD OF TRUSTEES OF THE STATE POLICE RETIREMENT SYSTEM
Appellate Division, A-3474-04T2, approved for publication January 11, 2006. (17 pages). Facts-on-Call Order No. 92802

A purely psychic stimulus that occurs during the course of public employment cannot constitute a traumatic event that may qualify a totally disabled employee for an award of an accidental disability pension.

PRISONERS’ RIGHTS
GREENFIELD v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Appellate Division, A-997-04T2, approved for publication January 11, 2006. (12 pages). Facts-on-Call Order No. 92803

There is no constitutional right to appear before the body that is charged with deciding whether an individual should be identified to the Attorney General as a possible candidate for civil commitment under the Sexually Violent Predator Act.

NOT APPROVED FOR PUBLICATION
INSURANCE
PRAKHINA v. ALLSTATE INSURANCE CO.
Appellate Division, A-4378-04T1, January 11, 2006, not approved for publication. (9 pages). Facts-on-Call Order No. 19087

Denial of the defendant insurer’s motion to vacate an order that vacated an arbitration award in a personal injury protection benefits dispute reversed; the award determined that the plaintiff doctor’s administration of a lumbar discogram to the insured was not medically necessary or reasonable; the doctor did not dispute that his motion to vacate the award failed to comply with the 45-day limit under N.J.S.A. 2A:23A-13(a); in denying the insurer’s motion, the trial court had effectively remanded the matter to arbitration due to an incomplete record, but that was an inappropriate basis for remand in light of the untimely motion by the doctor; the doctor’s motion should have been denied, which would have rendered the insurer’s motion unnecessary.

LAND USE
ELITE DEVELOPMENT, LLC v. MAYOR AND COUNCIL OF THE TOWN OF KEARNY
Appellate Division, A-2911-04T1, January 11, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19088

Law Division order that declared that two ordinances were void affirmed; the two ordinances amended the municipality’s zoning ordinance, and it was undisputed that they were enacted without the notice required by N.J.S.A. 40:55D-62.1; contrary to the argument on appeal by the defendant Mayor, the defendant Town Council, and the defendant Planning Board, there was “ample factual support” for the Law Division’s finding that the two ordinances were not adopted pursuant to a general re-examination of the Town’s master plan; the Law Division correctly determined that the two ordinances were invalid because the notice required by §40:55D-62.1 was not provided.

DISCOVERY
LANCER INSURANCE CO. v. RIVERA
Appellate Division, A-4557-04T2, January 11, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19086

Judgment of $8,279.06 for the plaintiff subrogee in an action to recover for property damage sustained in an automobile accident affirmed; the parties stipulated the amount of the damages at $8,279.06 after the trial court granted the defendants’ motion immediately before trial to bar the plaintiff from presenting evidence of property damage beyond the amount that it had disclosed during discovery; after the end of discovery and five days before trial, the plaintiff had sent the defendants “proofs of damages” totaling $16,658; two days before trial, the plaintiff had sent the defendants “additional documents,” including an appraisal that identified the damages as $16,042.69; pursuant to Rule 4:17-7, once discovery had ended, the plaintiff was barred from amending its claim for damages in the amount set forth in its answers to interrogatories without providing a certification that the information underlying the amendment was unavailable earlier, and the plaintiff did not provide, and apparently could not have provided, such a certification.

REAL PROPERTY
CHB AMERICA BANK v. KIM
Appellate Division, A-3160-04T5F, January 10, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19085

Denial of the defendant mortgagors’ motion under Rule 4:50-1 for relief from a foreclosure judgment affirmed; contrary to the defendants’ arguments on appeal, (1) no hearing was required to determine the amount due to the plaintiff banks because the defendants failed to identify any impropriety in the amount of the judgment, (2) there was no basis to disturb the judgment based on allegations that the plaintiffs sought unreasonable late charges and an unreasonable default interest rate because the defendants produced no evidence to overcome the presumption that the plaintiffs’ charges were reasonable, and (3) the defendants had no right to a credit on this mortgage for surplus funds that were generated in a separate foreclosure action by the plaintiffs against a different property that the defendants owned.

LANDLORD AND TENANT
MILLER v. MOJAWALLA
Appellate Division, A-1507-04T1 and A-3336-04T1, January 10, 2006, not approved for publication. (15 pages). Facts-on-Call Order No. 19084

Orders (1) entered in the plaintiff landlords’ first action — which sought possession of the commercial premises due to nonpayment of rent — that granted possession to the landlords and that denied the defendant tenant’s motions to vacate the judgment of possession and the warrant for the tenant’s removal and (2) entered in the landlords’ second action — which sought possession because the tenant was unlawfully holding over — that granted possession to the landlords reversed; in 2003, the tenant exercised an option to extend the lease for five years beyond its original September 2004 end date; the landlords’ first action was filed after the tenant withheld rent in the summer of 2004; as to the first action, the tenant was entitled to a dismissal because it had substantially complied with N.J.S.A. 2A:18-55 when it tendered the amount that the trial court found to be due, even though the landlords did not accept the tender; as to the second action, the tenant validly exercised the option because it was not in default at the time of that exercise, and the lease therefore did not end in September 2004.


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