NEW JERSEY LAWYER

DAILY BRIEFING      01/27/2006


News Briefs

STATE TO PAY NEARLY $1M FOR AUTO ACCIDENT INJURIES
A passenger injured when her parked car was hit head-on by a state car will receive $965,000 from the New Jersey treasury under a settlement. Josephina Toribio of Jersey City, who was sitting with her husband in the car parked in front of their house, suffered serious injuries including a broken leg, a ruptured disc in her lower back and bladder damage. She also had surgery for two herniated discs in her neck following the Dec. 16, 2001 accident. The state car was driven by Byrel Matthews of the Division of Youth and Family Services. Previously, Toribio received $15,000 in a settlement with her auto insurer. Robert Francis Gold and Anthony V. Locascio of Gold, Albanese, Barletti & Velazquez represented the woman in Toribio v. New Jersey Department of Treasury while deputy Attorney General Alfred M. Low-Beer handled the case for the Treasury Department and DYFS. 1-26-06

FORMER AG PETER HARVEY LANDS AT BIG NYC FIRM
Peter C. Harvey, who just ended his stint as New Jersey’s attorney general, will have three months off before starting March 20 as a partner at the New York City firm Patterson Belknap Webb & Tyler. The firm, which specializes in commercial law and litigation, has nearly 200 lawyers. Harvey, the first black to serve as New Jersey’s top law enforcement official, had been a partner at Riker Danzig in Morristown before becoming first assistant attorney general in 2002. He was appointed attorney general in 2003 and his term ended with Gov. Jon S. Corzine’s swearing-in earlier this month. Harvey said he’s looking forward to returning to the courtroom. 1-26-06

… AND IN OTHER AG NEWS
Corzine’s choice as attorney general, Zulima V. Farber, is expected to face a full Senate vote Monday. Farber, who is black and Hispanic, has been approved by the Senate Judiciary Committee, but her confirmation vote isn’t expected to be a cake walk. The liberal Farber, who has criticized mandatory criminal sentences and was beaten up for her checkered driving record, is expected to take heat from some Republicans, who hold 18 seats. Two of them, Sens. Joseph Kyrillos Jr. of Monmouth County and Gerald Cardinale of Bergen County, voted against releasing her nomination from the committee. Democrats, who control 22 seats, are expected to back the governor’s choice. 1-26-06

HORMONE REPLACEMENT THERAPY SUITS REASSIGNED
All pending and future lawsuits involving alleged injuries stemming from the use of hormone replacement therapy drugs have been reassigned to Middlesex County Judge Bryan D. Garruto. Mass tort cases, including this one, previously landed with Atlantic County Judge Carol E. Higbee. She’s been busy with all the Vioxx litigation filed in state courts and recently was directed by the state Supreme Court to also handle suits involving the Ortho Evra birth-control patch. Garruto’s responsibilities include overseeing all management and trial issues related to HRT. He can appoint a special master if he sees the need. 1-26-06

ENDING SIX-YEAR DISPUTE, TENAFLY WILL PAY GROUP’S LEGAL FEES
Tenafly Mayor Peter Rustin said a vote this week to pay $325,000 in legal fees and to allow an Orthodox Jewish group to expand a structure on town property ends an ugly chapter in the borough’s history. “This was something that had a life of its own and never should have happened,” Rustin told The Star-Ledger of Newark. The six-year dispute was over construction of an “eruv,” an area bounded by telephone wires and utility poles marked with plastic strips. The marked-off area allows Orthodox Jews to perform tasks otherwise banned outside the home on the Sabbath, including pushing a baby stroller and carrying objects such as keys. The borough council voted 5-0, with one abstention, earlier this week on an ordinance that allows the Tenafly Eruv Association to maintain and to expand its symbolic structure. 1-26-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, JANUARY 26, 2006
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JANUARY 26, 2006:

CONTRACTS
COUNTY OF ESSEX v. FIRST UNION NATIONAL BANK
New Jersey Supreme Court, A-107/108, January 26, 2006. (25 pages). Facts-on-Call Order No. 92823

In an action arising from the bribery of a public official by the employee of a commercial bank to obtain underwriting privileges on three bond issues, disgorgement was an appropriate remedy even though there was a valid contract, but the fees that were paid to innocent third parties should not be part of the disgorgement award.

MENTAL HEALTH
IN RE COMMITMENT OF M.M.
New Jersey Supreme Court, A-7, January 26, 2006. (3 pages). Facts-on-Call Order No. 92824

In a one-sentence opinion, the New Jersey Supreme Court affirmed substantially for the reasons expressed in the Appellate Division opinion reported at 377 N.J. Super. 71 (2005). As used in the case law, the phrase “usual principles of sentencing” does not include the consideration of aggravating and mitigating factors to determine the term of commitment to a mental health facility for a defendant who was acquitted by reason of insanity.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JANUARY 27, 2006.



APPROVED FOR PUBLICATION
APPELLATE PROCEDURE
PARKER v. CITY OF TRENTON
Appellate Division, A-440-04T1, approved for publication January 26, 2006. (5 pages). Facts-on-Call Order No. 92825

Even though the defendants’ earlier motion to dismiss the plaintiffs’ interlocutory appeal had been denied, the issue was preserved for later review; the Appellate Division dismissed the plaintiffs’ appeal from the dismissal of four counts of their complaint under the Law Against Discrimination because it was interlocutory, because they did not obtain an order granting leave to appeal, and because the record did not warrant review at this time.

INSURANCE
HORNET EXPRESS v. ZURICH AMERICAN INSURANCE GROUP
Appellate Division, A-7135-03T1, approved for publication January 26, 2006. (14 pages). Facts-on-Call Order No. 92826

An insurance policy that provides coverage for New Jersey workers’ compensation benefits cannot reasonably be construed to require the insurance carrier to pay the portion of a workers’ compensation judgment entered in another state that would have been awarded if the claim petition had been filed in New Jersey.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
ELITCHKO v. TOMAN
Appellate Division, A-4535-04T3, January 26, 2006, not approved for publication. (9 pages). Facts-on-Call Order No. 19150

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; as to the trial court’s determination that the plaintiff had not demonstrated that her injuries had a serious impact on her life, she no longer had to prove a serious life impact pursuant to DiProspero v. Penn; as to the trial court’s determination that the plaintiff failed to demonstrate by objective credible evidence that she had suffered a qualifying injury under §39:6A-8a, the electromyogram that indicated right-side radiculopathy had not been presented to the trial court, and, based on the record, the Appellate Division concluded that the trial court would have reached a different conclusion if it had been aware of the report; there was “ample, credible medical evidence of a qualifying injury” resulting from the parties’ 2002 accident; as to the defendant’s assertion that the plaintiff was required to provide a comparative analysis under Polk v. Daconceicao in light of her 2003 accident that aggravated her injuries from the 2002 accident, the Appellate Division concurred with the decision in Davidson v. Slater that the requirement of a Polk analysis did not survive AICRA.

VERBAL THRESHOLD
KNOCHOWSKI v. DELL
Appellate Division, A-4107-04T5, January 26, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19149

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court observed that the plaintiff had an “extensive medical history” before the accident, and it concluded that the plaintiff did not provide the comparative analysis required by Polk v. Daconceicao; however, the plaintiff’s evidence was sufficient to survive summary judgment because he presented neurological tests that confirmed that he suffered from permanent C5-6 radiculopathy on his right side, a doctor’s opinion that that condition was caused by the accident, and a second doctor’s opinion that the plaintiff had a permanent “life altering” disability that was caused by the accident; Polk did not apply because the plaintiff was not claiming that a prior injury was aggravated and because, pursuant to Davidson v. Slater, a Polk comparative analysis is “no longer tenable” on a summary judgment motion.

PUBLIC EMPLOYEES
NEARY v. BOROUGH OF RIDGEFIELD
Appellate Division, A-4266-03T2, January 26, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19151

Law Division order that affirmed the plaintiff police officer’s disciplinary convictions and his removal from employment with the defendant Borough, which was not a civil service municipality, affirmed; on de novo review from a departmental hearing on nine disciplinary charges, the Law Division determined that the proofs against the plaintiff were “overwhelming,” that his removal was “clearly warranted,” that he had submitted “blatantly false and misleading” overtime and return-time requests, and that the charges underlying his removal should be upheld under the “implicit standard of good behavior” required of police officers; contrary to the plaintiff’s arguments on appeal, (1) “ample evidence” supported the Law Division’s findings, (2) the Borough’s failure to adopt the Attorney General’s guidelines for internal affairs pursuant to N.J.S.A. 40A:14-181 did not warrant dismissal of the charges, and (3) the plaintiff was not prejudiced by the introduction of evidence of alleged misbehavior that exceeded the scope of the charges.

HUSBAND AND WIFE
SCHWITZER v. SCHWITZER
Appellate Division, A-22-04T1, January 25, 2006, not approved for publication. (28 pages). Facts-on-Call Order No. 19147

Order confirming an arbitration award concerning alimony and college expenses reversed, and the parties’ post-divorce-judgment motions on those issues remanded; the parties’ property settlement agreement provided for the defendant ex-husband’s alimony obligation to be reviewed in six years; after six years elapsed, the ex-husband moved to terminate alimony and to reduce his contribution toward college expenses, and the plaintiff ex-wife moved to convert rehabilitative alimony to permanent alimony and to increase the amount of alimony; at binding arbitration, the arbitrator ordered a retroactive increase in alimony to the date of the divorce judgment and prospectively reduced the ex-husband’s contribution toward college expenses; however, the arbitrator exceeded the limits of his authority because the issue of the adequacy of the alimony specified in the PSA was not submitted to the arbitrator, and the modification of the parties’ obligations for college expenses was “obviously and inextricably related” to the arbitrator’s alimony award and could not be considered “in isolation” on appeal.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.C.
Appellate Division, A-5524-04T4, January 25, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19148

Family Part judgment that terminated the defendant mother’s parental rights to her son affirmed; contrary to the mother’s arguments on appeal, (1) the Family Part did not abuse its discretion by denying her motion for an adjournment to provide the plaintiff Division of Youth and Family Services with additional time to evaluate whether the son’s maternal grandmother was a potential caretaker for him, (2) the mother’s right to a fair trial was not impaired by the Family Part’s “forceful” questioning of her expert psychologist, and (3) the Family Part made factual findings that were “fully supported” by the record, and it correctly applied the legal standards codified at N.J.S.A. 30:4C-15.1a.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
R.M. v. NORTH BRUNSWICK TOWNSHIP BOARD OF EDUCATION
OAL Docket No. EDS 4743-05, Agency Docket No. 2005 10243, Final Agency Decision: December 8, 2005, released for publication January 5, 2006. By Stein, ALJ. (20 pages).

The administrative law judge denied the petitioner parents’ requests for an out-of-district placement for their 13-year-old son, who was recently reclassified as multiply disabled, for reimbursement for the costs that they incurred in having him independently evaluated in the areas of speech and language and neuropsychology, and for compensatory education. As to the son’s placement, the ALJ determined that the respondent Board of Education was providing a free appropriate public education in the least restrictive environment in light of the “substantial and credible” testimony from two teachers who observed the son daily and in light of the parents’ failures to introduce evidence about whether the son’s individualized education program was inappropriate, to observe the son in the classroom, and to provide testimony about the details of their proposed out-of-district placement. As to reimbursement, the ALJ concluded that the fax he received from the parents had withdrawn their due process request for independent evaluations and had not requested reimbursement for independent evaluations. As to compensatory education, the ALJ found that the Board had no obligation to provide it.

SPECIAL EDUCATION
S.P. v. MILLBURN TOWNSHIP BOARD OF EDUCATION
OAL Docket No. EDS 5291-05, Agency Docket No. 2005 10010, Final Agency Decision: December 5, 2005, released for publication January 5, 2006. By Frank, ALJ. (25 pages).

The administrative law judge denied the petitioner parents’ request for an order declaring that the appropriate placement for their daughter for the 2005-2006 school year was the Winston School and that the parents should be reimbursed retroactively for unilaterally placing their daughter at the Winston School when she began third grade in September 2004. The daughter was eligible for special education services under the classification category of specific learning disability, and her individualized education program for the 2003-2004 school year provided for pullout replacement instruction in reading, language arts, and mathematics and for additional in-class support in language arts. The ALJ concluded (1) that the education proposed and provided to the daughter by the respondent Board of Education through its IEPs constituted a free appropriate public education in the least restrictive environment, (2) that the Board’s program that was in effect before the unilateral placement would confer a “significantly advantageous” educational benefit to the daughter, and (3) that the unilateral placement was not justified.


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