NEW JERSEY LAWYER

DAILY BRIEFING      01/26/2006


News Briefs

LESSON FOR LAWYERS IN CAMDEN PLANNING CASE
It pays to dot all the I’s and cross the T’s when your client is spending $1.2 billion. Superior Court Judge Michael J. Kassel tossed out Cherokee Camden’s Cramer Hill redevelopment plan because somebody forgot to swear in two witnesses before the Camden Planning Board in 2004. The board and the developer must start from the beginning, then send the redevelopment ordinance to the City Council for another vote. That gives opponents another chance to try to sink the project. This isn’t the first goof-up in the controversial project, which will relocate 1,200 families. Last May, Superior Court Judge Francis J. Orlando was the first to toss out the plan because the city failed to give the required 48 hours’ notice before a public meeting. The proposed redevelopment plan includes 6,000 new homes, a golf course, a marina and 500,000 square feet of retail space. 1-25-06

NEW CONTRACTOR LAW GETS MIXED REVIEWS
Although a new law to protect unsuspecting homeowners from home repair contractors who take their money and run went into effect this month and seems to be working, there are loopholes. The law requires contractors be registered with the state, and to qualify for that registration by showing they have liability insurance. But building code officials statewide are seeing homeowners applying for permits saying they’re doing the work themselves, which officials know is improbable. Besides, it’s just a registration; it doesn’t vouch for contractors’ competence the way licenses for electricians and plumbers are supposed to. The state Division of Consumer Affairs reports 27,000 applications from remodelers, painters and landscapers, with about 18,000 approved so far. 1-25-06

DEL TUFO COULD BE NEXT UMDNJ CHAIRMAN
Appointing former Attorney General Robert J. Del Tufo as chairman of the board may be Gov. Jon S. Corzine’s next step in the cleanup of the University of Medicine and Dentistry of New Jersey. Del Tufo, also a former U.S. attorney, has a squeaky-clean reputation, and that’s something the school needs amid scandals over bidding and extravagant spending and an ongoing federal investigation into its finances. The imminent appointment of Del Tufo, now with Skadden Arps Slate Meagher & Flom in New York, was first reported by The Record of Hackensack. He and the next UMDNJ president will be operating under the watchful eye of another highly respected member of the state’s legal fraternity, former U.S. Attorney and ex federal Judge Herbert J. Stern, who’s been appointed federal monitor. 1-25-06

FORMER U.N. RIGHTS CHIEF GETTING RUTGERS AWARD
Bertrand G. Ramcharan, the United Nations high commissioner for human rights in 2003 and 2004, will receive the William J. Brennan Jr. Human Rights Award Monday from Rutgers Law School-Camden. Named for the late U.S. Supreme Court justice from New Jersey, the Brennan Award is presented annually by the law school to a foreign lawyer or judge who has made a notable contribution toward establishing or defending human rights. Ramcharan has served the UN 31 years and has directed human rights missions in Iraq, the former Yugoslavia, Iran, Nicaragua, Bosnia, South Africa, Ghana, Haiti and Darfur. He will speak on “Challenges to the Protection of Human Rights” at 4 p.m. in room 106 of the School of Law building. 1-25-06

N.J. MORATORIUM GETS INTERNATIONAL NOTICE
With the death penalty abolished by all 25 of its members, the European Union has applauded New Jersey’s action to formally suspend the use of the death penalty pending a commission study. “With the death penalty, any miscarriage of justice is perpetuated and can never be redressed,” the EU stated. “No legal system is immune to miscarriages of justice.” The EU has been pressing for worldwide abolition of the death penalty. A 13-member commission created by the state legislature is scheduled to report in November. While there are 10 prisoners on death row, no one has been executed in New Jersey since 1963. 1-25-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, JANUARY 25, 2006
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, JANUARY 25, 2006:

WORKERS’ COMPENSATION
FITZGERALD v. TOM CODDINGTON STABLES
New Jersey Supreme Court, A-119, January 25, 2006. (25 pages). Facts-on-Call Order No. 92821

The New Jersey Horse Racing Injury Compensation Board was not responsible for compensating the plaintiff licensed second horse trainer and licensed groom for her work-related injuries because the plaintiff did not fall within the plain meaning of the definition of a “horse racing industry employee” set forth in the Horse Racing Injury Compensation Board Act. The workers’ compensation scheme established under the Act requires a horse trainer who is not employed by the horse’s owner to be covered by her employer’s private workers’ compensation coverage, and the workers’ compensation coverage provided by the Board is a “safety net” that applies only where “serious injuries have been sustained for which there is no coverage.”

THE SUPREME COURT has announced that it will release opinions in COUNTY OF ESSEX v. FIRST UNION NATIONAL BANK, A-107/108, and IN RE COMMITMENT OF M.M., A-7, on January 26, 2006. The issue on appeal in County of Essex addresses whether a commercial bank that bribed a public official to obtain underwriting privileges on bond offerings is required to return to the public entity all of the underwriting fees that were paid on the bond issues, regardless of whether the bank distributed a portion of those fees to other underwriters. The issue on appeal in M.M. addresses whether N.J.S.A. 2C:4-8b(3) requires the commitment of a person who was found not guilty of a crime by reason of insanity for a period equal to the maximum sentence for the crime without regard to aggravating or mitigating factors.



APPROVED FOR PUBLICATION
INSURANCE
WINNER v. REVILL
Appellate Division, A-6750-03T5, approved for publication January 25, 2006. (13 pages). Facts-on-Call Order No. 92822

Although the contractual language of the decedent’s insurance policy required an insured to exhaust the full amount of the tortfeasor’s policy before pursuing underinsured motorist coverage, the plaintiff widow and executrix and the plaintiff son did not forfeit their right to pursue UIM benefits by accepting a settlement that was less than the full amount of the tortfeasor’s policy. In addition, because the settlement with the tortfeasor resolved the underlying action, all of the remaining issues concerning liability and damages were subject to arbitration pursuant to the decedent’s policy.

NOT APPROVED FOR PUBLICATION
NEGLIGENCE
CITIMORTGAGE v. KIM
Appellate Division, A-5866-04T1, January 25, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19144

Denial of the third-party defendant employee’s motion for an extension of time within which to file a request for a trial de novo following arbitration under Rule 4:21A affirmed; the employee, who worked for a mortgage broker, made an error while completing the third-party plaintiff property owners’ application for insurance, and the error resulted in the insurer denying coverage after a fire destroyed the property; without the insurance proceeds, the property went into foreclosure; the owners filed a third-party negligence complaint against the employee, and an award of $29,819.27 was entered against him when he did not appear at arbitration on the scheduled date; the trial court correctly denied the employee’s motion (1) because he failed to file his request for a trial de novo within the 30-day time period under Rule 4:21A-6 when he deposited his request in the mail on the 30th day and (2) because the employee, who provided no explanation for his failure to appear at arbitration, failed to meet the threshold of “extraordinary circumstances” required to extend the 30-day period.

TORT CLAIMS ACT
GAZZILLO v. BOARD OF EDUCATION, SOUTH HUNTERDON REGIONAL HIGH SCHOOL
Appellate Division, A-3167-04T1, January 25, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19143

Denial of the plaintiff school custodian’s motion for permission to file a late notice of tort claim against the defendant Board of Education and her supervisor affirmed substantially for the reasons expressed by the trial court; the plaintiff alleged that she was sexually assaulted by her supervisor on July 20, 2004, but she did not file a notice of claim before the 90-day period under N.J.S.A. 59:8-8 expired on October 18; the trial court concluded (1) that the plaintiff had not substantially complied with the notice requirements of the Tort Claims Act by orally notifying another supervisor on July 20 about the incident or by informing the Board in an October 5 letter that she had suffered a workplace injury and would be filing a claim for workers’ compensation benefits and (2) that there were no extraordinary circumstances to excuse or explain the plaintiff’s failure to file a timely notice.

LAND USE
BOROUGH OF MANTOLOKING v. FITZGERALD
Appellate Division, A-3829-02T3, January 25, 2006, not approved for publication. (16 pages). Facts-on-Call Order No. 19145

Order that dismissed the plaintiff Borough’s complaint seeking temporary restraints to stop the defendant from further construction on his oceanfront residence and that directed the Borough to issue a certificate of occupancy for the residence affirmed; the Borough challenged the “extensive restoration” of the residence, which was exempt as a nonconforming use from the setback requirements of the Borough’s zoning ordinance; the trial court properly concluded that the Borough was equitably estopped under Howland v. Borough of Freehold from obtaining relief; the record supported the findings (1) that the expansion of the upper stories of the residence into open space beyond the foundation’s footprint did not require any alteration to the foundation itself, (2) that there was no evidence of bad faith by the defendant in applying for permits or by the construction code or zoning officials, (3) that the defendant relied in good faith on permits issued by Borough officials and was not informed that he needed a variance for the expansion, and (4) that the defendant spent “thousands of dollars” in reliance on the validity of the permits and on the Borough’s acquiescence to the ongoing construction.

HUSBAND AND WIFE
BASSANI v. BASSANI
Appellate Division, A-5290-04T5, January 25, 2006, not approved for publication. (12 pages). Facts-on-Call Order No. 19146

Final order that fixed the parties’ obligations to pay the attorney’s fees and costs incurred during their divorce proceedings affirmed in part, reversed in part, and remanded; the award of $6,787.50 in attorney’s fees to the defendant ex-husband was affirmed because the trial court adequately addressed the factual basis for its finding that the plaintiff ex-wife lacked good faith in filing orders to show cause and motions; however, reversal and remand were required as to the balance of the order — which denied the parties’ remaining cross-requests for attorney’s fees and required the ex-wife to pay for the ex-husband’s experts and for half of the cost for the joint expert — because the trial court failed to address the relevant factors under Rules 5:3-5(c) and 5:3-3(i) and because it failed to make the findings of fact required by Rule 1:7-4(a).

REAL PROPERTY
MAGIC TOUCH CONSTRUCTION CO. v. BOROUGH OF KEYPORT
Appellate Division, A-4304-03T2, January 24, 2006, not approved for publication. (11 pages). Facts-on-Call Order No. 19142

Summary judgment for the defendant Borough and its former mayor in the plaintiff landowner’s action for possession and title to a strip of former tidelands along the waterfront in the Borough affirmed in part, reversed in part, and remanded; the strip ran along the rear of the plaintiff’s property, which it had acquired in 1985; the Borough had deposited fill material on the strip in 1964 during a State-funded waterfront development project, and the strip was now part of a parking lot; as to the plaintiff’s claims for monetary damages for trespass and other torts, they were properly dismissed based on the six-year statute of limitations under N.J.S.A. 2A:14-1 because the accrual of the cause of action was triggered by the Borough’s 1964 filling project; as to the plaintiff’s claims to obtain possession of the strip based on its upland ownership rights under N.J.S.A. 2A:35-1 and to quiet title under N.J.S.A. 2A:62-1, reversal and remand were required because the trial court improperly applied the six-year statute of limitations without addressing the merits of those claims; on remand, the Borough’s counterclaim for adverse possession also must be addressed; as to the plaintiff’s civil rights claims, they were properly dismissed.

CONTRACTS
Y-TWO, INC. v. DAILEY
Appellate Division, A-3083-04T5, January 24, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19141

Judgment for the defendant marina owner following a bench trial affirmed in an action by the plaintiff former owner for its share in the rental payments for 10 boat slips as a result of new leases; before selling the marina, the plaintiff received full payment from lessees for the use of 67 slips until 2077; the parties’ sales contract provided for the plaintiff to retain a share of the reversionary rights under the 67 leases; following the sale of the marina, the defendant accepted assignments from the holders of 10 of the 67 leases because the lessees wished to surrender their leaseholds, and it executed 10 new leases that did not extend the leasehold term beyond the original end date in 2077; contrary to the plaintiff’s arguments on appeal, the trial court did not err by determining (1) that the defendant’s acceptance of the 10 assignments did not create a merger of its interests as lessor and lessee that terminated its leasehold interest and that triggered the plaintiff’s reversionary rights and (2) that the defendant’s actions did not constitute a breach of the covenant of good faith and fair dealing.

FROM THE ADMINISTRATIVE AGENCIES
PENSIONS AND BENEFITS
ROBSON v. POLICE AND FIREMEN’S RETIREMENT SYSTEM
OAL Docket No. TYP 12120-04S, Agency Docket No. PFRS #3-10-31344, Initial Decision: November 22, 2005, Final Agency Decision: January 11, 2006. By Dubin, ALJ. (6 pages).

The Board of Trustees of the Police and Firemen’s Retirement System adopted the administrative law judge’s initial decision, which denied the application for accidental disability retirement benefits by the petitioner, who was a sergeant in the New Jersey Transit Police. While responding to a fare dispute, the petitioner tripped over “a big piece of PVC” that stuck out of the ground at a railroad grade crossing, and he later underwent a hip replacement. The ALJ applied the test for a traumatic event under Kane v. Board of Trustees, Police and Firemen’s Retirement System, and he concluded that the petitioner was unable to satisfy the requirement that his injury originated from “a great rush of force or uncontrollable power” because the New Jersey Supreme Court has held that slip-and-fall cases do not satisfy this requirement and because “the same analysis ought to apply to classic ‘trip and fall’ cases” like the petitioner’s.

PENSIONS AND BENEFITS
JAEGER v. POLICE AND FIREMEN’S RETIREMENT SYSTEM
OAL Docket No. TYP 5518-05, Agency Docket No. 50790, Initial Decision: November 18, 2005, Final Agency Decision: January 10, 2006. By Jones, ALJ. (14 pages).

The Board of Trustees of the Police and Firemen’s Retirement System accepted in part but rejected in part the initial decision of the administrative law judge that had determined that both of the incidents in which the petitioner senior corrections officer was injured were traumatic events that caused her total and permanent disability. Because both incidents directly resulted in the petitioner’s disability, the Board determined that each incident had to satisfy independently the criteria for a traumatic event. As to the first incident — in which the petitioner was injured when she attempted to subdue an inmate who had been found guilty at a video court appearance — the Board determined that the incident was a traumatic event. As to the second incident — in which the petitioner was injured when she fell from a ladder-type stairwell after her knee “gave out” — the Board determined that the incident was akin to a slip-and-fall accident and therefore did not rise to the level of a traumatic event under the case law.


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