NEW JERSEY LAWYER

DAILY BRIEFING      01/03/2005


News Briefs

HIGH COURT TO HEAR BANK RECORDS CASE
Set to be heard Jan. 4 by the New Jersey Supreme Court is the issue of whether law enforcement officers are required to obtain a search warrant based on probable cause or to provide advance notice to an individual before gaining access to his or her bank records. Based on the state constitution, the Appellate Division ruled last February in State v. McAllister that the state must either obtain a search warrant before acquiring someone’s records from a bank or give that person an opportunity to object to the issuance of a grand jury subpoena for the records. “The repose of confidence in a bank goes beyond entrustment of money, but extends to the expectation that financial affairs are confidential except as may be reasonable and necessary to conduct customary bank business,” wrote Judge Harold B. Wells III in a decision that grants New Jersey residents more privacy rights than the U.S. Supreme Court has recognized under the Fourth Amendment. 12-30-04

FEDERAL JUDGESHIPS WON’T BE VACANT LONG
Interested lawyers may want to update their résumé. With chief U.S. District Judge John W. Bissell expected to retire in September, four federal judgeships will soon be vacant — lifetime posts with six-figure pay, plenty of prestige, independence and clout, and eventually a comfy pension. Three of those juicy posts already may be spoken for, but as in all things political, nothing is certain, so it’s not a bad idea for aspiring jurists to start looking around for some big shot to put the word in for them. For a full story, see the Jan. 3 New Jersey Lawyer. 12-30-04

AIR SHUTTLE NOT ‘DULY LICENSED FOR PASSENGER SERVICE'
An insurance policy that provided benefits for accidental death in a public conveyance did not cover bi-weekly air shuttle service to Atlantic City, the 3rd U.S. Circuit Court of Appeals has ruled. It reversed a district court’s summary judgment ordering the insurance company to pay the benefit to survivors of a woman killed when the shuttle crashed. In J.C. Penney Life Insurance Company v. Pilosi, the U.S. District Court for the Middle District of Pennsylvania had ordered J.C. Penney Life to pay a $1 million accidental death benefit to Christian and James Pilosi, sons of the deceased policyholder, Elaine Pilosi, on the basis that the shuttle operated by Executive Airlines on behalf of Caesars Casino was, in fact, a public conveyance. The appeals court acknowledged the plane is a public conveyance, but noted additional wording in the policy limited coverage. “A reasoned analysis reveals that ‘regular passenger service’ modifies the adjective ‘licensed,’ so that coverage extends narrowly to those common carriers specifically licensed to conduct regular passenger service,” wrote senior Circuit Judge Max Rosenn, holding the shuttle does not fit that narrow definition. (A full text of J.C. Penney, Facts-on-Call Order No. 92237, can be ordered from NJL Online or by calling 800-670-3370.) 12-30-04

IMMIGRATION REGS TO TAKE EFFECT IN MARCH
The Program Electronic Review Management system (PERM), a long-awaited overhaul of the Foreign Labor Certification Program, will take effect March 27, according to the U.S. Department of Labor, which recently published the new regulations. The system is designed to reduce backlogs and speed the certification process, the first step in processing a permanent-resident visa for a foreign national. PERM will rely on an employer’s attestation that it already has tested the labor market and determined there are no minimally qualified U.S. workers available; under the current system, employers must submit evidence they have advertised the job and found no qualified applicants. This change opens the door to Labor Department audits at any time after certification is granted and to the possibility of retroactive revocation of certification. In a related development, the Department of State has announced a reduction in the number of employment-based visas. 12-30-04



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT , THURSDAY, DECEMBER 30, 2004:
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, DECEMBER 30, 2004, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, JANUARY 3, 2005


APPROVED FOR PUBLICATION
PUBLIC CONTRACTS
DIAL BLOCK CO., INC. v. MASTRO MASONRY CONTRACTORS
Appellate Division, A-2827-03T1, approved for publication December 30, 2004. (17 pages). Facts-on-Call Order No. 92238

Under the New Jersey Public Works Bond Act, a person who does not have a “direct contract” with the contractor furnishing the bond must give the contractor written notice of the person’s intent to be a beneficiary of the bond. In this case, the Law Division properly found that a joint checking agreement among the general contractor, the subcontractor, and a material supplier is not a “direct contract” under the Act and that, to qualify as a beneficiary of the bond, the material supplier must give timely written notice to the general contractor.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
SKOLOFF & WOLFE, P.C. v. TRABOCCO
Appellate Division, A-3304-03T2, December 30, 2004, not approved for publication. (9 pages). Facts-on-Call Order No. 17468

Law Division order denying the defendant client’s motion to vacate a default judgment that awarded attorney’s fees to the plaintiff law firm that had represented him in the underlying matrimonial action affirmed in part, modified in part, and remanded; after the trial court decided the matrimonial action, the defendant’s attorney began working on an appeal and sent the defendant a retainer agreement on January 9, 2003; after the attorney requested his fee from the trial, the defendant fired him, hired new counsel, and never signed the retainer; as to trial fees, the Law Division correctly denied the motion to vacate the default judgment because the defendant showed neither excusable neglect nor a meritorious defense; however, the record as to appellate fees was “not completely clear,” and that issue should have been decided on the basis of quantum meruit rather than on the attorney’s billing invoices alone.

VERBAL THRESHOLD
MILBOURNE v. CHANDLER
Appellate Division, A-6768-02T5, December 30, 2004, not approved for publication. (13 pages). Facts-on-Call Order No. 17467

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA and denial of the plaintiff’s motion for reconsideration affirmed; the trial court (1) correctly determined that the plaintiff failed to demonstrate that her injuries had a serious impact on her life and (2) did not err by denying the plaintiff’s motion for reconsideration because her affidavit addressing the impact of her injuries could have been submitted in opposition to the defendants’ summary judgment motion and because the additional medical records she enclosed with her motion did not satisfy the “serious impact” prong under Oswin.

VERBAL THRESHOLD
DIAZ v. McNAMARA
Appellate Division, A-3879-03T5, December 30, 2004, not approved for publication. (5 pages). Facts-on-Call Order No. 17466

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed substantially for the reasons expressed by the trial court; the plaintiff’s physician found spasm in the plaintiff’s cervical and lumbar spine and her trapezius muscles about nine months after her accident, and her MRI revealed a disc protrusion; the trial court determined that the plaintiff failed to demonstrate a permanent injury (1) because the presence of spasm must be confirmed at least one year after the accident to constitute credible objective evidence of a permanent injury and (2) because a protrusion by itself does not constitute a permanent injury.

VERBAL THRESHOLD
DeMORE v. McDOWELL
Appellate Division, A-3993-02T5, December 29, 2004, not approved for publication. (11 pages). Facts-on-Call Order No. 17464

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; summary judgment was appropriate because, although the 15-year-old plaintiff had “arguably” presented objective, credible evidence of a per-manent injury, she had failed to demonstrate that her injuries had a serious impact on her life (1) where the restrictions on her activities appeared “self-imposed,” (2) where her description of symptoms relating to her low back was “inconsistent” with both the statements she made to her doctors and the doctors’ findings, (3) where she did not receive treatment for her headaches, and (4) where the evidence did not indicate that her neck problems interfered with her daily activities.

LAND USE
ARTHUR’S SELF SERVICE, INC. v. TOWNSHIP OF NORTH BRUNSWICK ZONING BOARD OF ADJUSTMENT
Appellate Division, A-3804-03T2, December 29, 2004, not approved for publication. (17 pages). Facts-on-Call Order No. 17465

Denial of the plaintiffs’ application for an amended site plan approval and a bulk variance affirmed; in 2000, the plaintiffs had been granted a use variance to operate a car wash on the plaintiff owner’s premises, and in 2002 they sought to erect an exterior-only car wash and a quick lube facility on the same premises; contrary to the plaintiff’s arguments on appeal, (1) the defendant Zoning Board had jurisdiction because the plaintiff’s notice complied with N.J.S.A. 40:55D-11, (2) the Zoning Board’s denial was proper even under a de novo standard of review, (3) the Zoning Board did not err by considering offsite traffic conditions, (4) the Zoning Board’s denial was based on sufficient findings, (5) the plaintiffs were required to satisfy the negative criteria of N.J.S.A. 40:55D-70d, and (6) the Zoning Board’s denial was not arbitrary or unreasonable.

LANDLORD AND TENANT
2677 INVESTMENTS, L.P. v. SIMONETTI
Appellate Division, A-1016-03T3, December 29, 2004, not approved for publication. (8 pages). Facts-on-Call Order No. 17463

Order (1) denying the plaintiff landlord’s application to evict the defendant superintendent and (2) creating a tenancy for the defendant in the plaintiff’s building reversed and remanded for the entry of a judgment of possession for the plaintiff; the defendant leased the building’s basement apartment for one month before becoming the superintendent in 1970; the plaintiff purchased the building in 2003, terminated the defendant’s employment, and sought to evict him; the trial court erred by determining that the plaintiff was precluded from evicting the defendant, even though N.J.S.A. 2A:18-61.1(m) of the Anti-Eviction Act did not apply to the defendant, whose tenancy preceded his employment, because the defendant was not a “tenant” on the effective date of the Act in 1974 and because the Act applies only prospectively.

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