NEW JERSEY LAWYER

DAILY BRIEFING      01/17/2006


News Briefs

WHAT’S IN A NAME, BUSINESS ‘PART’ OR ‘COURT’?
As promised, the New Jersey State Bar Association and its allies in the legislature are pressing ahead to get a specialized business court network. Last year, the drive to create a commercial part in the Superior Court system flew through the Assembly but crashed in the Senate in the face of forceful opposition from the Administrative Office of the Courts. The AOC told legislators a specialized part wasn’t necessary because, while there is room for improvement and experiment, the present court system can handle any and all cases. One of the issues that arose during the debate was whether the legislature had the constitutional authority to direct the Supreme Court to create a new division and to assign judges from its roster to it. So the new version of the legislation calls it a “business court,” freestanding from the Superior Court system, analogous to the Tax Court. The bills, S-272 and A-727, were filed by Sen. Paul A. Sarlo (D-Bergen) and Assemblyman David Russo (R-Bergen). 1-13-06

COULD NEW AG BE THE NEXT JUSTICE?
In choosing Zulima V. Farber as his attorney general, Gov. Jon S. Corzine also may have teed up the next justice on the New Jersey Supreme Court and signaled the future abolition of the death penalty. He also got himself a strong-willed, action-oriented lawyer who knows how to work the Trenton scene and has a record suggesting she can’t be pushed around. In fact, Farber, once a candidate for the New Jersey Supreme Court, carries the kind of professional credentials and political connections that could well put her into position again for a seat on the high court in 18 months when a vacancy arises. Read the full story in the Jan. 16 New Jersey Lawyer. 1-13-06

WOMAN REACHES $3 MILLION MED-MAL SETTLEMENT
A $3 million settlement was reached in the medical malpractice suit of a 40-year-old Camden County woman who claimed the treatment she received from her gynecologist, Dipak R. Delvadia, at Kennedy Memorial Hospital in Stratford resulted in septic shock, cardiac arrest and loss of a kidney. Beverly Askew’s attorneys, Robert Ross and Gary Zakeosian of Kline & Specter in Cherry Hill, said she was admitted to the South Jersey hospital in 2003 for a hysterectomy and treatment of fibroid tumors, but during the surgery a bowel and her uterus were perforated, which were not timely recognized and treated. The defendants denied liability, saying the perforations were a risk of the procedure and that the problem was recognized and treated. Delvadia was represented by Rudolph A. Socey Jr. of Lenox Socey Wilgus Formidoni Brown Giordano & Casey in Lawrenceville. 1-13-06

DC CIRCUIT COURT ALLOWS MASS-ARREST CIVIL CASE TO PROCEED
The U.S. Court of Appeals for the District of Columbia Circuit has declined to dismiss a civil lawsuit stemming from the mass arrest of people in a park during large-scale anti-globalization demonstrations in Washington in 2002. Police arrested 386 people, many of whom were demonstrating peaceably. Some were simply passers-by. In Barham v. Ramsey, the appeals court said, “The mass arrest at Pershing Park violated the clearly established Fourth Amendment rights of plaintiffs by detaining them without particularized probable cause.” Assistant Police Chief Peter Newsham was not entitled to qualified immunity, the court said. The court ruled the appeal of police Chief Charles H. Ramsey was premature. 1-13-06

FIFTY-NINE POLICE CARS FLUNK INSPECTION
Trenton police officers — who can stop and ticket motorists for driving cars with expired inspection stickers, bad brakes, kaput lights and windshield wipers that have seen better days — have a bad case of “do as I say, not as I do.” Fifty-nine vehicles flunked inspection; only four that were inspected recently passed. Detective Sgt. Pedro Medina, spokesman for the force, said 22 failed for emissions, 20 for such “minor” reasons as faulty headlights or windshield wipers, 15 for “moderate” brake or suspension problems, and two for registration issues. The squad cars were sent for inspection after the police director, Joseph Santiago, noticed some vehicles had expired inspection stickers. Now, the police maintenance garage is under investigation. And Medina, in a statement of the obvious, said that if police are expected to cite motorists for problems with their cars, well, then, the police department itself must ensure its own fleet is road-legal. 1-13-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, JANUARY 13, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JANUARY 13, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, JANUARY 17, 2006.

NEW JERSEY COURTS ARE CLOSED ON MONDAY, JANUARY 16, 2006, AND NO OPINIONS WILL BE RELEASED.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON FRIDAY, JANUARY 13, 2006.

NOT APPROVED FOR PUBLICATION
CIVIL RIGHTS
CACELLA v. CITY OF NEWARK
Appellate Division, A-1524-04T2, January 13, 2006, not approved for publication. (12 pages). Facts-on-Call Order No. 19098

Summary judgment for the municipal and police defendants affirmed in an action arising from an accident in which the plaintiff pedestrian was struck by a stolen vehicle that the police were attempting to stop; as to the dismissal of the plaintiff’s claim that he was denied “adequate, effective and meaningful” access to the courts in violation of 42 U.S.C. §1983 when the police allegedly concealed the names, addresses, and statements of eyewitnesses to the accident, (1) the plaintiff was able to present, through an eyewitness who testified at trial, his claim that the police had engaged in willful misconduct or had recklessly operated their vehicles and (2) the plaintiff did not plead his §1983 claim; as to the dismissal of the plaintiff’s claim that the police operated their vehicles in a “negligent, careless, and reckless manner,” no reasonable jury could find that the police were not pursuing the stolen vehicle or that the stolen vehicle was not evading arrest when it struck the plaintiff, and the actions by the police thus were immune from liability under the New Jersey Tort Claims Act.

LAND USE
JEWISH FAMILY SERVICE, INC. v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF BERGENFIELD
Appellate Division, A-4450-04T5, January 13, 2006, not approved for publication. (11 pages). Facts-on-Call Order No. 19100

Law Division order that affirmed the defendant Zoning Board’s denial of the plaintiff nonprofit organization’s application for a use variance affirmed; the organization sought to operate a long-term residential drug treatment facility on its premises; contrary to the organization’s arguments on appeal, (1) the Zoning Board correctly rejected the organization’s contention that the proposed use qualified as an inherently beneficial use because there was “a dearth of evidence” about the need for the proposed facility in the area and because the “underlying thrust” of the organization’s application was “essentially economic” and (2) the organization did not present “special reasons” to warrant the grant of the variance because it had declined to proceed on that basis before the Zoning Board.

CIVIL PROCEDURE
AETNA HEALTH, INC. v. CARABASI CHIROPRACTIC CENTER, INC.
Appellate Division, A-3185-04T1, January 13, 2006, not approved for publication. (11 pages). Facts-on-Call Order No. 19099

Dismissal with prejudice of the plaintiff insurer’s complaint against the defendant chiropractors for failure to state a claim on which relief could be granted (1) reversed as to the claims for insurance fraud, common law fraud, negligent misrepresentation, and tortious interference with the insurer’s contracts with its subscribers but (2) affirmed as to the claim for unjust enrichment; the chiropractors did not participate in the insurer’s plan, but they treated patients who were covered by the insurer and sought payment for those treatments; as to the claims for insurance fraud, common law fraud, and negligent misrepresentation, the trial court improperly considered materials outside the complaint, which by itself adequately pleaded those claims; as to the tortious interference claim, it was “clearly” set forth in the pleadings; as to the unjust enrichment claim, it had “no merit.”

MUNICIPAL COURTS
STATE v. PRETO
Appellate Division, A-5417-04T5, January 13, 2006, not approved for publication. (9 pages). Facts-on-Call Order No. 19101

Law Division’s dismissal of the citizen complainant’s appeal from the Municipal Court’s decision that there was no probable cause to issue a summons affirmed; following a verbal confrontation with another citizen at a Township meeting, the complainant sought to file a citizen’s complaint against the other citizen for harassment and for unsworn falsification to authorities; after reviewing the complainant’s affidavit of probable cause, the Municipal Court found no probable cause to issue a summons; the Law Division correctly concluded that, under the Court Rules and the case law, the complainant lacked standing to appeal the Municipal Court’s dismissal of his complaint for lack of probable cause.

HUSBAND AND WIFE
WOODRUFF v. FALCONE
Appellate Division, A-4541-03T1, January 12, 2006, not approved for publication. (12 pages). Facts-on-Call Order No. 19094

Post-divorce-judgment order that awarded $9,000 in attorney’s fees to the defendant ex-husband reversed and remanded; the trial court (1) failed to make “any real findings of fact or conclusions of law,” which prevented “meaningful appellate review,” (2) failed to mention any of the Rule 5:3-5(c) factors for determining the award of attorney’s fees in family matters, except for its suggestion that the plaintiff ex-wife lacked good faith, and (3) failed to consider the parties’ property settlement agreement, which “expressly and absolutely” waived the parties’ rights to attorney’s fees that were incurred before the PSA was executed and which waived their rights to attorney’s fees that were incurred after the PSA was executed as long as the parties adhered to the terms of the PSA; reversal and remand were required in light of the trial court’s failure to consider the PSA and to distinguish between prejudgment and post-judgment litigation.

PARENT AND CHILD
DIVISION OF YOUTH AND FAMILY SERVICES v. N.S.
Appellate Division, A-4262-04T4, January 12, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19096

Final order that terminated the defendant mother’s parental rights to her 4-year-old son affirmed for the reasons expressed by the trial court in its “comprehensive” written opinion; the son tested positive for PCP at birth, was placed with a foster family when he was 4 days old, and still lived with the foster family, which sought to adopt him; the trial court found that the son had been harmed by his mother’s prenatal drug use, that the mother continued to use drugs, that the mother did not participate in the treatment programs that the plaintiff Division of Youth and Family Services had recommended, and that the mother did not reliably visit her son; the trial court also gave “significant weight” to the testimony of DYFS’s psychological expert, who asserted that termination of the mother’s parental rights would not do more harm than good.

CRIMINAL TRIALS
STATE v. MAHON
Appellate Division, A-6328-03T3, January 12, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19095

Conviction following a trial de novo of loitering for the purpose of illegally using, possessing, or selling CDS in violation of N.J.S.A. 2C:33-2.1 reversed; the defendant was found guilty in the Municipal Court of violating §2C:33-2.1 after a trial at which the arresting officer was the State’s only witness; the Law Division committed reversible error when it convicted the defendant because the evidence established only that the defendant had “purposefully traveled” from one location to another and because the State failed to prove within the meaning of the statute that the defendant had been “hanging around or loitering” or that she had “wandered, remained, or prowled in a public place” to buy CDS.

CRIMINAL TRIALS
STATE v. GRIFFIN
Appellate Division, A-6587-03T4, January 12, 2006, not approved for publication. (9 pages). Facts-on-Call Order No. 19097

Conviction of third-degree receiving stolen property reversed and remanded for trial; police officers identified the defendant as the driver of an automobile that had been reported stolen and that had been driven into a police vehicle, but the defendant admitted only that he was a passenger in the automobile; reversal and remand were required under State v. Hodde because the trial court had misinformed the jury about the elements of the offense by failing to instruct the jury that it had to find that the automobile was actually stolen and by instead instructing the jury that the State did not have to prove that the automobile was actually stolen; the trial court committed reversible error, even though the New Jersey Supreme Court did not decide Hodde until after the defendant’s trial and even though the State “arguably” had proved that the automobile was actually stolen.


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