NEW JERSEY LAWYER

DAILY BRIEFING      01/20/2006


News Briefs

SENATORS TO VET FARBER MONDAY
Zulima V. Farmer, Gov. Jon S. Corzine’s choice for attorney general, is scheduled to be interviewed Monday by the Senate Judiciary Committee. An attorney with more than 30 years of experience, including a stint as public advocate and public defender during the Florio administration, she is a partner at Lowenstein Sandler in Roseland. If the committee votes to approve her nomination, she could be confirmed as early as the full Senate’s next meeting Jan. 26. Assistant Attorney General Nancy Kaplen is acting AG in the meantime. Monday’s hearing is at 10 a.m. in Committee Room 4 of the Statehouse Annex. 1-19-06

CASINO SMOKE IGNITES FEUD
The state’s new indoor smoking ban — which exempts casinos — is forcing Atlantic County politicians to choose sides on whether they’ll defend the casinos or fight the exemption as unhealthy and unfair to their other business constituents. Just before leaving office, Gov. Richard J. Codey signed legislation banning indoor smoking in nearly all public places, saying he didn’t like the casino exemption, but it was a compromise. This week, in his first act as a legislator, former Atlantic City Mayor Jim Whelan introduced a bill in the Assembly (A-2067) to eliminate that exemption. “Casino employees are subject to secondhand smoke that other people in other workplaces are not. That doesn’t seem fair,” Whelan said. Restaurant owners are suing to block enforcement of the law, which takes effect April 15. 1-19-06

PASSAIC COUNTY SUIT TARGETS FORD FOR TOXIC CONTAMINATION
Ford Motor Co. has been sued in Passaic County Superior Court by 717 people, most of whom are members of the Ramapough Mountain Indian tribe who live in Upper Ringwood. In Mann v. Ford Motor Co., the plaintiffs allege they suffered property damage and personal injuries caused by the improper disposal of toxic waste from Ford’s former plant in Mahwah. They say that although federal environmental officials had declared the site clean based on Ford reports, since then additional toxic waste has been discovered in Upper Ringwood. Among those representing the plaintiffs is Robert F. Kennedy Jr. 1-19-06

ASBESTOS SETTLEMENT HAS WIDE MARGIN
If Congress creates a fund to compensate people for asbestos-related illnesses, one corporation will benefit almost immediately. Houston-based McDermott International has agreed to settle 300,000 asbestos injury claims against its subsidiary, Babcock & Wilcox. The $955 million settlement figure could be whittled to about one-third of that if a national $140 billion fund is established. Senate Majority Leader Bill Frist is making that a priority. With the subsidy, McDermott would pay only $375 million. The settlement is part of a reorganization plan for Babcock, which used to use asbestos to insulate boilers. 1-19-06

CAUTION TO OFFICIALS: READ BEFORE YOU SIGN
A Miami official who signed off on a $7 million settlement has been apologizing profusely to citizens who didn’t get the money he thought they were getting. City Commissioner Johnny Winton admitted he didn’t read the settlement, which, instead of returning money to 80,000 citizens who paid an assessment, went to the five plaintiffs who challenged its constitutionality and their attorneys. Winton half-blamed the city attorney’s office, but promised he won’t let it happen again. The city is back in court, this time begging to void the settlement, even though half the money was already paid out. The city still may have to give citizens the refund Winton thought he was signing, on top of what was paid to the five. 1-19-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, JANUARY 19, 2006
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JANUARY 19, 2006:

SEARCH AND SEIZURE
STATE v. BIRKENMEIER
New Jersey Supreme Court, A-85, January 19, 2006. (20 pages). Facts-on-Call Order No. 92814

Under the facts of this case, (1) once it was corroborated by the observations of the police, the tip from a confidential informant provided the reasonable and articulable suspicion required for an investigatory stop of the defendant’s car, (2) once the car was stopped lawfully and the odor of marijuana was detected by the police, there was probable cause and exigent circumstances to trigger the automobile exception to the warrant requirement and to allow the lawful search of the passenger compartment, and (3) once the police lawfully discovered the marijuana in the passenger compartment, there was a sufficient basis to support a request for the defendant’s consent to a search of his home.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JANUARY 20, 2006.



APPROVED FOR PUBLICATION
HUSBAND AND WIFE
LEHR v. AFFLITTO
Appellate Division, A-6992-03T2, approved for publication January 19, 2006. (37 pages). Facts-on-Call Order No. 92815

In conducting a hearing pursuant to Harrington v. Harrington to determine whether the parties had reached a final, binding settlement of their matrimonial action, the Family Part erred by allowing the court-appointed mediator to testify in the absence of an express waiver, which violated the mediation and mediator confidentiality provisions contained in Rule 1:40-4(c). With or without the testimony of the mediator, the Family Part’s finding that the parties had reached a final, binding settlement of their matrimonial action was not supported by substantial credible evidence, especially since both parties had stipulated that they had failed to reach a settlement of three financial issues.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
BRIMMER v. MELENDEZ
Appellate Division, A-6282-03T5, January 19, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19115

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the motion judge concluded that the reports offered in opposition to the defendant’s motion for summary judgment were not sufficient to meet the standard under Polk v. Daconceicao for a comparative analysis; the Appellate Division declined to address the “growing controversy” about the continuing viability of Polk under AICRA; rather, the Appellate Division followed the court in Hardison v. King and concluded that it was not required to “enter the fray completely” because this case did not deal with the aggravation of a prior injury; although the plaintiff had been diagnosed with bipolar disorder before the accident, there was nothing in the record that suggested that her post-accident diagnosis of severe cognitive impairment was an aggravation of her earlier condition.

VERBAL THRESHOLD
RODRIGUEZ v. COACH USA
Appellate Division, A-2610-04T5, January 19, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19116

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; applying the Oswin v. Shaw test, the motion judge concluded that the plaintiff had presented sufficient objective medical evidence to meet the first prong of the test but that she had failed to show that she sustained a sufficiently serious injury to meet the second prong; the motion judge’s comments about the records of the plaintiff’s prior injuries did not represent a decision that a comparative analysis under Polk v. Daconceicao was required; there was no basis in the record that supported a Polk analysis and therefore no basis on which to conclude that one should have been required; reversal and remand were required under the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, which abrogated the second Oswin prong.

HUSBAND AND WIFE
HALLAD v. HALLAD
Appellate Division, A-2934-04T2, January 19, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19117

Denial of the defendant ex-husband’s application for a reduction in his alimony obligation affirmed substantially for the reasons expressed by the Family Part; the record did not support the ex-husband’s assertion that he was unable to meet his obligation of paying $3,250 per month; when determining the ex-husband’s ability to pay, the Family Part properly considered his monthly wages that averaged $8,732, his receipt of about $3,787 per month in forgiveness-of-indebtedness income, and his other unearned income from investments; the Family Part’s findings were supported by substantial credible evidence, and its conclusions were consistent with controlling legal principles.

DRUNK DRIVING
STATE v. STEPONGZI
Appellate Division, A-5848-04T2, January 19, 2006, not approved for publication. (3 pages). Facts-on-Call Order No. 19118

Law Division order that “affirmed” the defendant’s conviction of driving while intoxicated reversed and remanded; in a trial de novo, the Law Division must determine the case anew on the Municipal Court record, rather than using the substantial credible evidence standard of review; because the defendant raised the Law Division’s “affirmation” of the Municipal Court conviction, the Appellate Division was constrained to reverse and remand to allow the Law Division to make independent findings based on the evidence in the Municipal Court record and giving due regard to the Municipal Court’s opportunity to determine credibility; as a result, the Appellate Division did not reach the merits of the issues raised on appeal.

FROM THE FEDERAL COURTS
CONSTITUTIONAL LAW
CHERRY HILL TOWERS, L.L.C. v. TOWNSHIP OF CHERRY HILL
U.S. District Court (DNJ), Civil Action No. 03-4744 (JEI), January 6, 2006. By Irenas, Senior U.S.D.J. (24 pages). Facts-on-Call Order No. 92793

In a real estate developer’s constitutional challenges to a municipality’s delay in issuing construction permits, the District Court granted summary judgment to the municipal defendants on all of the federal claims and dismissed without prejudice the state law tort claims. A 65-day delay between the statutory response deadline and the date that the developer was notified that the permits were granted did not “shock the conscience” and therefore did not violate the developer’s substantive due process rights. The issuance of the permits rendered moot the developer’s procedural due process claims relating to its access to the process for appealing from the denial of the permits, and the requirement of prior approval from the utility authority did not violate the developer’s equal protection rights.

CIVIL PROCEDURE
BLYSTRA v. FIBER TECH GROUP, INC.
U.S. District Court (DNJ), Civil Action Nos. 00-4593 and 01-2271 (JEI), December 29, 2005, released for publication January 6, 2006. By Irenas, Senior U.S.D.J. (27 pages). Facts-on-Call Order No. 92795

In an action alleging that the defendants engaged in transactions to deprive the plaintiffs of their ownership interests in certain products and technology, the District Court granted the defendants’ motion for summary judgment as to the plaintiff inventor’s claims but denied the defendants’ motion for summary judgment as to the claims of the plaintiff limited partners of an entity that was created to market and develop the products and technology. The District Court held (1) that the inventor’s claims were barred by the statute of limitations and the doctrine of laches, (2) that summary judgment as to the limited partners’ claims could not be granted on limitations grounds because the evidence was insufficient to establish when they knew or shown have known about their injuries, (3) that the limited partners as individuals had standing, and (4) that the defendant company owed a duty of due diligence to the limited partners.

EMPLOYMENT DISCRIMINATION
GRAZIOLI v. GENUINE PARTS CO.
U.S. District Court (DNJ), Civil Action No. 03-2875 (JEI), December 30, 2005, released for publication January 6, 2006. By Irenas, Senior U.S.D.J. (39 pages). Facts-on-Call Order No. 92798

In an action alleging that the plaintiff employee was fired because she had reported sexual harassment by her supervisor and because she had informed the defendant employer that she had chronic obstructive pulmonary disease, the District Court (1) granted the employer’s motion for summary judgment as to the claims for disability discrimination and retaliation in violation of the Americans With Disabilities Act and the New Jersey Law Against Discrimination and for violation of the Family Medical Leave Act but (2) denied the motion as to the claims for sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the LAD.


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