NEW JERSEY LAWYER

DAILY BRIEFING      01/24/2006


News Briefs

HISPANIC BAR BOOSTS FARBER
Even before the Senate Judiciary Committee opened its hearings Monday on Zulima V. Farber’s nomination as attorney general, the Hispanic Bar Association of New Jersey was boosting her qualifications. Countering critics who say the Cuban-born nominee is short on law enforcement experience, the association points to “the breadth” of that experience. It notes Farber was an assistant Bergen County prosecutor, an assistant counsel to Gov. Brendan Byrne advising him on amendments to the criminal code and criminal law legislation, served as public defender, handles criminal litigation in her current firm, and has been a member of special state commissions focusing on possible changes in sentencing laws. “In short,” said the Hispanic Bar, “Ms. Farber is intimately familiar with the criminal laws of New Jersey and their enforcement.” 1-23-06

A CHANCE TO BONE UP ON EUROPEAN TRADEMARK LAW
Three members of the United Kingdom’s Institute of Trade Mark Attorneys (ITMA) will share their insights at the New Jersey State Bar Association’s Intellectual Property Section meeting Thursday, Feb. 2. Titled “Community Trademark and Community Design Rights,” the 6 p.m. dinner program will focus on the importance of European trademark protection for American companies doing business in Europe, according to Marc S. Friedman, section chairman. Speakers are Stephen James, ITMA president; Philip Harris, first vice president; and Maggie Ramage, treasurer. They will discuss enforcement of community trademarks in the United Kingdom, what types of trademarks can be registered under the Community Trade Mark Regulation (CTMR) and the issue of detriment, not dilution. To register, call the State Bar’s meetings department at (732) 249-5000 or log on to NJSBA.com. 1-23-06

BLACKBERRY USE HANGS IN THE BALANCE
Attorneys who’ve become increasingly dependent on their BlackBerry will be sweating out a potential injunction, now that the U.S. Supreme Court declined to hear a significant patent infringement case, RIM v. NTP. NTP, a patent holding company, has until Feb. 1 to request an injunction from the U.S. District Court for Eastern Virginia. An injunction could force Canada-based RIM (Research in Motion) to shut the BlackBerry system to its 4.3 million subscribers. It also could affect the system’s use by law enforcement officials on all levels. The legal battle began in 2001 when NTP sued RIM for infringement of its patents. A jury the following year awarded NTP $23.1 million, which a federal judge increased to $210 million in 2003. The litigants reached a tentative $450 million agreement last year, but that fell apart and RIM wants the lower court to enforce the agreement. 1-23-06

INJURED MOTORCYCLIST SETTLES FOR $600,000
A motorcyclist injured in a collision with an 18-wheel tractor trailer has settled his lawsuit against the trucker for $600,000 on the eve of trial. The accident occurred when Raymond Berry was driving his motorcycle Aug. 19, 2003 in Franklin Township and Scott Carlin Sr., the trucker, had stopped at an intersection to allow two young girls to cross before making a left turn. That’s when Berry struck the rear of the trailer. According to Berry’s attorney, Barry R. Eichen of Eichen Levinson & Crutchlow in Edison, Carlin should have seen Berry prior to attempting the turn. The motorcyclist’s injuries included fractures of his jaw, nose, thigh and leg, as well as eye damage. The trial in Berry v. Carlin had been scheduled before Somerset County Judge Victor Ashrafi. Thomas F. Zborowski of Methfessel & Werbel in Edison represented defendants Scott Carlin & USA Cartage. 1-23-06

NEW JUDGES GET THEIR ASSIGNMENTS
Essex, Mercer and Middlesex counties are getting new judges. Chief Justice Deborah T. Poritz has assigned the following new judges: Sherry A. Hutchins-Henderson, Essex County Family Part; Mark J. Fleming, Mercer County Family Part; and Arthur Bergman, Middlesex County Civil Division. 1-23-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, JANUARY 23, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, JANUARY 23, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, JANUARY 24, 2006.


APPROVED FOR PUBLICATION
TRIAL BY JURY
HITCHMAN v. NAGY
Appellate Division, A-5047-03T1, approved for publication January 23, 2006. (26 pages). Facts-on-Call Order No. 92817

During jury selection, a trial judge may initiate sua sponte an inquiry pursuant to Batson v. Kentucky and State v. Gilmore to determine whether counsel’s exercise of a peremptory challenge was racially motivated, but only if there has been a prima facie showing that the exercise was racially motivated. During the examination of a witness at trial, the judge may intervene if the witness makes an inappropriate racial or ethnic reference; however, if the witness initially provides a reasonable explanation for that reference, the trial judge should not persist in questioning the witness to give the witness the appearance of a racial bias when no bias exists.

NOT APPROVED FOR PUBLICATION
TORT CLAIMS ACT
CORTESE v. CITY OF ASBURY PARK
Appellate Division, A-3585-04T3, January 23, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19127

Summary judgment for the defendant City pursuant to the Tort Claims Act affirmed in a personal injury action arising from the plaintiff motorcyclist’s accident; the plaintiff alleged that he crashed after he lost control of his motorcycle on an “uneven, grassy” part of the pavement on the City’s street; however, the cracks in the street that were depicted in the photographs on which the plaintiff relied were mere “minor imperfections” and did not constitute a dangerous condition of public property under Polyard v. Terry; in addition, the plaintiff failed to present any evidence that the City had actual or constructive notice of the alleged dangerous condition.

PREMISES LIABILITY
LANGONE v. FOOD-A-RAMA
Appellate Division, A-1562-04T5, January 23, 2006, not approved for publication. (14 pages). Facts-on-Call Order No. 19130

Jury’s liability verdict in a personal injury action arising from the plaintiff delivery man’s fall on the premises that the defendant store leased from the defendant landlord affirmed, but the jury’s damages award reversed and remanded for reconsideration of the offset for the delivery man’s Social Security benefits; as to the liability verdict, the jury found that the delivery man was 44 percent negligent, that the store was 34 percent negligent, and that the landlord was 22 percent negligent; even though the delivery man had settled with the store before trial, evidence of the store’s liability under its lease was properly submitted to the jury; as to the offset, the trial court correctly determined that the award of $150,000 for lost wages had to be offset because the Social Security benefits that he received for 177 weeks were duplicate benefits under the collateral source statute, N.J.S.A. 2A:15-97; however, the trial court erred by failing to deduct the duplicated amount — $53,593 — before the $150,000 award was adjusted to reflect the apportionment of fault and by deducting less than the entire $53,593.

DAMAGES
HELMY v. CITY OF JERSEY CITY
Appellate Division, A-5915-03T2, January 23, 2006, not approved for publication. (15 pages). Facts-on-Call Order No. 19131

Law Division decision on remand from the New Jersey Supreme Court that denied the defendants’ previously unresolved motion for remittitur and that declined to consider issues that the defendants had not previously raised affirmed; the jury awarded the plaintiff $500,000 after finding that he had been maliciously prosecuted, but the Law Division vacated the verdict on the defendants’ motion for judgment n.o.v.; the Appellate Division affirmed, but the Supreme Court remanded for reinstatement of the verdict and for consideration of the defendants’ unresolved motion for remittitur; contrary to the defendants’ arguments on appeal, (1) the Law Division correctly determined on remand that it was constrained by the Supreme Court’s limited remand order, (2) they were not unfairly barred from raising their contention that the plaintiff was not entitled to any damages due to his failure to establish a permanent injury under the Tort Claims Act, and (3) the Law Division did not abuse its discretion by denying the motion for remittitur.

LAND USE
COMLY v. ZONING BOARD OF ADJUSTMENT OF TOWNSHIP OF WEST AMWELL
Appellate Division, A-2935-04T3, January 23, 2006, not approved for publication. (18 pages). Facts-on-Call Order No. 19129

Final judgment that reversed the defendant Zoning Board of Adjustment’s grant of a use variance to the defendant applicants affirmed for the reasons expressed by the trial court; the applicants sought to erect a two-story, 2,000-square-foot freestanding building for the operation of their firearms business in the R-2 residential zone; the variance “seemingly” had been granted under N.J.S.A. 40:55D-70d(3) as a conditional use variance for a home occupation, which was a permitted conditional use in the R-2 zone; however, the trial court held that the applicants’ proposal to operate their business entirely in an accessory building did not fit within the definition of “home occupation” set forth in the municipal zoning ordinance and that the deviation from the definition was “not insignificant”; the trial court further concluded that reversal was required even if the use variance had been granted under §40:55D-70d(1).

DRUNK DRIVING
STATE v. PASEK
Appellate Division, A-4474-04T1, January 23, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19128

Convictions following a trial de novo of driving under the influence and careless driving affirmed; the arresting officer testified that he investigated after he heard “screeching tires,” that he saw the defendant’s vehicle traveling at a speed that was “pretty high” and was above the 25 mph limit, and that he saw the defendant’s vehicle make an “abrupt and very sharp left turn” without signaling; the Municipal Court determined that the officer’s testimony was credible, even though the defendant’s failure to signal was not documented in the police report, and that the officer had probable cause to stop the defendant’s vehicle after he observed the turn; the Law Division deferred to the Municipal Court’s credibility findings and concluded that the officer had a reasonable articulable suspicion that justified the stop, and the record contained “ample support” for the Law Division’s decision.

DAMAGES
MOGEN DAVID CASKET CO., INC. v. GIBBONS
Appellate Division, A-1096-04T2, January 20, 2006, not approved for publication. (11 pages). Facts-on-Call Order No. 19126

Denial of the plaintiff coffin company’s application for punitive damages remanded for further consideration after the trial court found for the company on its claim that the defendant landlord illegally converted and distrained the company’s coffin wood components; the landlord had seized the components from its tenant, which was the company’s subcontractor, to reduce the tenant’s rent arrears; although punitive damages may be awarded under the Punitive Damages Act when a plaintiff establishes that he suffered harm from the defendant’s “actual malice” or “wanton and willful disregard” of the plaintiff’s rights, the trial court considered the company’s application for punitive damages as a request for attorney’s fees and costs, and it considered neither the landlord’s conduct on the merits nor the company’s allegations that the landlord had acted in a “wantonly malicious manner”; remand was required because the record was insufficient for the Appellate Division to evaluate the company’s application and because the landlord, who did not appear before the Appellate Division to explain why punitive damages were inappropriate, also did not have the opportunity to address that issue in the trial court.


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