NEW JERSEY LAWYER

DAILY BRIEFING      01/18/2005


News Briefs

IDEAS SOUGHT ON MAJOR GOVERNMENTAL ETHICS REVIEW
Former Justice Daniel J. O’Hern and Seton Hall Law Professor Paula Ann Franzese — acting Gov. Richard J. Codey’s special counsel for ethics review and compliance — are seeking public input in their examination of ethics rules that govern executive branch employees. Of particular interest are comments on post-government employment restrictions, creation of a plain-language ethics code for executive branch employees, creation of a business ethics code for all entities that conduct business with the state, and the addition of anti-nepotism provisions to the state Conflicts of Interest Law. Comments should be sent by Feb. 11 to Paula A. Franzese, Seton Hall University School of Law, One Newark Center, Newark, N.J. 07102. 1-14-05

COURT CRACKS DOWN ON REPEAT ATTORNEY ETHICS OFFENDERS
The New Jersey Supreme Court is sending a message to lawyers with past disciplinary problems: Cooperate with officials investigating new ethics complaints or risk disbarment. That was made clear recently when the justices disbarred an oft-disciplined lawyer brought up on new client-neglect charges who stonewalled the court, even though the standard punishment for such ethical transgressions would be suspension for one year or less. For a complete story, see the Jan. 17 New Jersey Lawyer. 1-14-05

WALL STREET FUND MANAGER FOUND LIABLE FOR FRAUD
Following rulings in New Jersey Superior Court and the Supreme Court of Delaware finding fund manager Alfred C. Eckert acted in bad faith and breached his fiduciary duty toward business partner Mikael Salovaara, Justice Charles Edward Ramos of the New York County Supreme Court held Eckert consciously defrauded Salovaara by making fraudulent transfers. Eckert had distributed tens of millions of dollars to three investment funds he managed, which collectively owed millions of dollars to Salovaara. Eckert required the limited partners of two of the funds, but not the third, to execute undertakings to return the money if necessary to meet the fund’s contractual obligations. Failing to require the third fund to do the same constituted “a preferential transfer, not made in good faith” and breached his fiduciary duties to Salovaara and the fund, said the judge. Initially, partners at Goldman Sachs, Eckert and Salovaara left in 1991 and formed Greycliff Partners and South Street Funds, which invested primarily in distressed securities. Eckert currently is defending against a $40 million lawsuit filed in Morris County by a group of South Street investors and a $20 million lawsuit filed by Salovaara, alleging Eckert misappropriated other partnership funds and made additional fraudulent conveyances to himself. Joseph L. Buckley of Newark is Salovaara’s attorney. 1-14-05

LANDLORDS CAN FILE TENANT INFO ONLINE
To help landlords make their Jan. 31 deadline, Attorney General Peter C. Harvey and Division on Civil Rights Director J. Frank Vespa-Papaleo have announced multiple-unit landlords can submit their Multiple Dwelling Reporting Rule (MDRR) forms online. These required forms include tenants’ racial and ethnic data. Landlords and leaseholders can go to the Civil Rights website, njcivilrights.org, and click on “MDDR online e-form application.” Forms for mailing also can be downloaded. 1-14-05

PRENUPTIAL AGREEMENT MUST BE FAIR
Parties entering into a prenuptial agreement “in consideration of marriage” are in a “confidential relationship” requiring them to deal fairly with each other, ruled Maryland’s Court of Appeals, the state’s highest court. And that, said the court in Cannon v. Cannon, means if the validity of the agreement is questioned later, it is up to the party seeking to enforce it to prove “there was no unfairness or inequity to the other party at the time the agreement was entered.” In this case, the high court declined to align the state’s common law with the approach taken by a majority of states, including New Jersey, in adopting the Uniform Premarital Agreement Act. That statute encourages the enforcement of prenuptial agreements by placing the burden of proving validity on the challenger and by limiting how deeply a court can examine the agreement’s fairness. 1-14-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, JANUARY 14, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JANUARY 14, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, JANUARY 18, 2005.

NEW JERSEY COURTS ARE CLOSED ON MONDAY, JANUARY 17, 2005, AND NO OPINIONS WILL BE RELEASED.



APPROVED FOR PUBLICATION
MENTAL HEALTH
IN RE QUEIRO
Appellate Division, A-3705-03T1, approved for publication January 14, 2005. (21 pages). Facts-on-Call Order No. 92262

The only standard for confirming or rejecting a testamentary guardianship of a mentally incapacitated adult is “the best interest and welfare of the mental incompetent,” which is to be applied giving due regard to the testator’s expressed design. The law does not create a kinship-hierarchy preference, and it is incorrect to apply Title 9 standards governing guardianship over children, which include a preference for the surviving parent.

MUNICIPAL COURTS
STATE v. VALENTINE
Appellate Division, A-1745-03T5, approved for publication January 14, 2005. (8 pages). Facts-on-Call Order No. 92263

In a private prosecution in Municipal Court, the lack of a showing of prejudice or of an objection does not excuse a private attorney’s failure to file a certification pursuant to Rule 7:8-7(b), which would preclude the Municipal Court from determining whether there was “good cause” for the private prosecution.

NOT APPROVED FOR PUBLICATION
DRUNK DRIVING
STATE v. APPICIE
Appellate Division, A-5032-03T2, January 14, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17510

Conviction of driving while intoxicated affirmed; contrary to the defendant’s argument on appeal, the use of ampoules in the pre-test inspection and certification of the Breathalyzer machine from a batch different from the batch that was used in the test itself did not require that the test results be suppressed; reading State v. Samarel and State v. Sandstrom together, the validity of Breathalyzer test results can be supported exclusively by a post-test certification that uses ampoules from the same batch as was used in the test, even if the ampoules used in a pre-test certification came from a different batch.

DRUNK DRIVING
STATE v. ZIZZAMIA
Appellate Division, A-6022-03T5, January 14, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17511

Law Division order granting the defendant’s motion to suppress evidence of the offense of driving while intoxicated affirmed, but the Law Division’s judgment of acquittal vacated and remanded for disposition in the Municipal Court; after the Municipal Court denied his motion to suppress for lack of probable cause, the defendant entered a conditional plea and was sentenced; when the defendant appealed to the Law Division, the police testimony could not be transcribed, the Municipal Court could not reconstruct the record, and the Law Division decided to hold a plenary hearing to take the officers’ testimony; contrary to the parties’ arguments on appeal, (1) the State’s appeal was not barred by the doctrine of double jeopardy, (2) the Law Division’s decision to conduct a plenary hearing did not transform the motion to suppress to a disposition on the merits, and (3) the disposition of the motion to suppress was supported by the record.

DRUNK DRIVING
STATE v. GROSSO
Appellate Division, A-3979-03T2, January 14, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17515

Law Division order denying the defendant’s motion to dismiss the charges of driving while intoxicated, failure to submit to a Breathalyzer test, and related motor vehicle offenses affirmed; the defendant made an initial appearance in court on August 4, 1997 and thereafter failed to appear; he later was arrested and sentenced on unrelated federal charges, and he was released from federal prison in Pennsylvania in November 2001; in October 2001, a form detainer letter was sent to the State; the motor vehicle summonses were listed for trial in September 2003, which was adjourned to November 2003; although the delay was six years, the defendant had spent four of those years in federal prison; the record did not indicate, and the defendant did not assert, that the delay was “a deliberate attempt on the part of the State to hamper the defense”; there was no evidence that the State knew of the defendant’s whereabouts until it received the detainer letter; furthermore, the defendant did not demonstrate any “tangible prejudice.”

TORT CLAIMS ACT
ALLEN v. COUNTY OF CAMDEN
Appellate Division, A-2731-03T2, January 14, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17512

Denial of the plaintiff’s motion for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9 against the defendant County affirmed in an action for injuries sustained by the plaintiff on October 26, 2002 when the driver of the vehicle in which the plaintiff was a passenger lost control while attempting to avoid an open manhole cover; the plaintiff’s Pennsylvania attorney first forwarded a notice of claim to the City on January 20, 2003 because the plaintiff believed that the City was at fault; on February 19, 2003, the City denied the plaintiff’s claim because the City did not have actual or constructive notice of the condition and because the road was a County road; the plaintiff’s counsel filed a notice of claim with the County on March 4, 2003, which was untimely; contrary to the plaintiff’s assertion, the City’s letter acknowledging receipt of the notice of claim and asking that the plaintiff fill out the enclosed claim form did not mislead the plaintiff or his attorney; the plaintiff’s reasons for not filing a timely notice of claim were insufficient, and the plaintiff did not present a reason that explained why it took more than nine months to file a motion for leave to file a late notice of claim.

VERBAL THRESHOLD
DeSIMINE v. GALEZNIAK
Appellate Division, A-5194-03T3, January 14, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17513

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; contrary to the plaintiff’s argument, Oswin v. Shaw applied to her cause of action; as to her neck and back injury, there was no objective medical evidence that the plaintiff had sustained a permanent injury, and she could not maintain her cause of action, regardless of her alleged limitations in lifting weights and carrying heavy objects; as to her TMJ complaints, there was some objective evidence that supported the plaintiff’s assertion that she had sustained a TMJ injury, but there was no evidence that it was serious or permanent and the evidence of its serious impact on her life was inadequate.

SETTLEMENTS
GARVIN v. DeJESUS
Appellate Division, A-3734-03T3, January 14, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17514

Law Division order denying the plaintiff’s motion to enforce a settlement and to enter judgment against the third-party defendants affirmed; two bail bondsmen “barged” into the plaintiff’s apartment with guns drawn but left after they determined that the plaintiff was not the person for whom they were looking; the plaintiff sued the bail bondsmen and the bail bonds company, the company brought a third-party action against the independent contractor that wrote the bonds and employed the bail bondsmen, and the action against company was later dismissed on summary judgment; the Law Division properly denied the plaintiff’s motion because (1) the plaintiff never brought a direct action against the third-party defendants and (2) the record showed that the plaintiff and the third-party defendant never entered into a binding settlement agreement.

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