NEW JERSEY LAWYER

DAILY BRIEFING      01/05/2006


News Briefs

CERTIFIED COPIES OF STATE OFFICIAL RECORDS COSTING MORE
Attorneys, their clients and others who obtain certified copies of birth, death or marriage certificates from the state will pay $25 this year, under the first increase in the $4 fee set more than 30 years ago. The new charge also will apply to domestic partnership certificates. The Department of Health and Senior Services expects to process 80,000 of all such documents, generating $2 million annually to help pay for new security measures aimed at preventing identity theft and thwarting would-be terrorists. The increases apply only to documents obtained from the department’s vital statistics office. The documents are also filed in municipal offices and available at varying rates set locally and usually less expensive than the new state rate. However, each municipality has records only for births, deaths and marriages that occurred within their border. 1-4-06

BILL WOULD LIFT CAP ON HOMICIDE DAMAGES
A bill passed by the Senate in June and up for Assembly Judiciary Committee review Thursday would eliminate the cap on punitive damages in civil cases filed after criminal convictions for murder, aggravated manslaughter and manslaughter. Under a 1995 law, punitive damages are limited to five times compensatory damages or $350,000, whichever is greater. The current exceptions are bias crimes, violations of laws against discrimination, breaches of confidentiality for AIDS and HIV records, drunken driving and child sexual abuse. S-1137, sponsored by Sens. Robert E. Littell (R-Sussex) and Robert J. Martin (R-Morris), was passed unanimously by the Senate and is expected to pass in the Assembly, since it’s already scheduled for a full house vote Jan. 9. 1-4-06

AG FORMS COMPUTER CRIME TASK FORCE
The proliferation of computer-related crimes has prompted state law enforcement officials to expand their focus on internet crime and beef up such probes. Attorney General Peter C. Harvey formed a Computer Crime Task Force, which pulls together personnel from the Division of Criminal Justice’s Computer Analysis and Technology Unit, the New Jersey State Police Digital Technology Investigations Unit and the State Police Cyber Crimes Unit. The task force has established a toll-free telephone number, 888-648-6007, to report suspected illegal activities. Reports also can be filed at HYPERLINK "http://www.cctf.nj.gov/" www.cctf.nj.gov. 1-4-06

CORZINE’S ‘SWEARING IN’ OFFICIALS JUST FOR SHOW
Let the public be aware. When Gov.-elect Jon S. Corzine shows up to swear in local officials, it ain’t for real, and in most cases, separate but official ceremonies have or will take place. Sometimes, though, even the public officials aren’t aware that raising their right hand in front of Corzine is strictly for the cameras and the beaming faces of family and friends. In Edison, for example, the new mayor, Jun Choi, was “sworn in” by Corzine, but had no idea it wasn’t for real until his staff was so advised by a newspaper reporter. Not to worry, though. Choi got the municipal clerk to administer the oath and is now the real McCoy. 1-4-06

FORMER PHARMACEUTICAL LAWYER TABBED FOR CABINET
Nina Mitchell Wells, formerly vice president of public affairs for Schering-Plough and assistant dean and director of the Minority Student Program at Rutgers Law School, is Gov.-elect Jon S. Corzine’s first appointee to his cabinet as secretary of state. The Department of State oversees arts, cultural and historical services, including the state archives, the state museum and the New Jersey Council on the Arts. She is the wife of prominent defense attorney Theodore V. Wells Jr. She and Corzine have been involved together in urban education and volunteerism projects. Among her responsibilities, Wells will oversee the Governor’s Office of Volunteerism, the Martin Luther King Jr. Commemorative Commission and the Office of Faith-based Initiatives. 1-4-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, JANUARY 4, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, JANUARY 4, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, JANUARY 5, 2006.


APPROVED FOR PUBLICATION
WORKERS’ COMPENSATION
WALROND v. COUNTY OF SOMERSET
Appellate Division, A-3265-04T5, approved for publication January 3, 2006. (16 pages). Facts-on-Call Order No. 92792

An action that arose when the plaintiff police officer was struck by lightning while serving as a “duty officer” at the defendant Somerset County Police Academy was not barred by the exclusive-remedy provisions of the Workers’ Compensation Act, and the plaintiff could sue the Academy in tort because the plaintiff, who had not received any compensation from the Academy, was not an employee or a special employee of the Academy.

NOT APPROVED FOR PUBLICATION
LAND USE
SAVERINO v. BOROUGH OF HILLSDALE PLANNING BOARD
Appellate Division, A-1281-04T5, January 4, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19043

Law Division order that affirmed the defendant Planning Board’s grant of preliminary site plan approval to the defendant property owner for the development of a restaurant and that denied the defendants’ motion for fees and sanctions under the frivolous complaint rule affirmed; the plaintiffs owned a competing restaurant; as to the approval, the Law Division properly determined that the Board’s decision was not arbitrary, capricious, or unreasonable; contrary to the plaintiffs’ arguments on appeal, (1) no variance was required for the construction of a swale, (2) the property owner made provisions for adequate drainage and run-off under the municipality’s code, and (3) the objection that the Board failed to properly mark exhibits into evidence lacked merit; as to the defendants’ motion, the Law Division’s determination that the plaintiffs’ claims were not frivolous constituted “a fair exercise of discretion.”

EMPLOYMENT LAW
SWIDERSKI v. NEW JERSEY TRANSIT CORP.
Appellate Division, A-6805-03T2, January 4, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19044

Summary judgment for the defendant New Jersey Transit Corporation, the defendant manager, and the defendant executive affirmed in the plaintiff employee’s action alleging that she had sustained physical and emotional injuries as a result of her treatment by her manager; the employee claimed that she suffered from shaking, headaches, faintness, and high blood pressure and that she had begun seeing a psychologist to deal with work-related distress and anxiety; contrary to the employee’s arguments on appeal, (1) her emotional and psychological injuries failed to satisfy the Tort Claims Act threshold, (2) the trial court properly determined that her claims against NJT were barred by the exclusive remedy provision of the Workers’ Compensation Act because she failed to establish that NJT had acted intentionally as required by Laidlow v. Hariton Machine Co., and (3) her claims for emotional distress were properly dismissed under Buckley v. Trenton Saving Fund Society.

HUSBAND AND WIFE
SAMMARTINO v. SAMMARTINO
Appellate Division, A-3100-04T1, January 4, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19046

Post-divorce-judgment order that denied the defendant ex-husband’s motion to modify his alimony and child support obligations affirmed; the parties divorced in April 2002, and the ex-husband filed his motion in December 2004; the ex-husband alleged that he had not worked since November 2003 due to work-related injuries and that he would continue to be out of work in 2005 “until at least May”; apart from his certification, the ex-husband’s medical proofs did not include evidence to support his claim that he was permanently disabled; the trial court did not abuse its discretion by denying the motion where the ex-husband had not made a showing of permanency and where the plaintiff ex-wife’s only income came from alimony and child support.

PARENT AND CHILD
LUBETKIN v. LUBETKIN
Appellate Division, A-1712-03T5, January 4, 2006, not approved for publication. (17 pages). Facts-on-Call Order No. 19048

Post-divorce-judgment order that increased the plaintiff ex-husband’s child support obligation from $1,500 per month to $5,000 per month and that awarded the defendant ex-wife $2,500 in attorney’s fees affirmed in part, reversed in part, and remanded; the findings were not adequate to allow review under Caplan v. Caplan, and a remand was required for reconsideration of the child support amount; the Family Part properly concluded that the parties’ agreement to reconsider child support under the Guidelines after 60 months eliminated the need for a showing of changed circumstances, but the Family Part did not make the required findings as to the parties’ respective incomes; the Family Part did not abuse its “broad discretion” in setting the attorney’s fee award, but the award could be reconsidered on remand because the respective ability to pay is relevant to a fee award in a Family Part matter.

LANDLORD AND TENANT
BRANDT v. DIEGO
Appellate Division, A-5445-04T5, January 4, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19047

Dismissal of the plaintiff landlord’s complaint for eviction of the defendant tenants for failure to pay a reasonable rent increase reversed and remanded; the trial court incorrectly determined that the municipal rent control ordinance applied to the landlord, who owned one condominium unit in a building with 34 units; the ordinance defines a “dwelling” as a building “rented or offered for rent to one or more tenants or family units” and exempted dwellings with “four or less housing spaces,” which it defines as “that portion of a dwelling rented or offered for rent for living and dwelling purposes”; the trial court’s interpretation of the ordinance, which applied the ordinance based on the number of units in the building, was not supported by the terms of the ordinance, especially in light of the ordinance’s purpose and the State policy concerning condominium ownership; the ordinance could not be read to apply to the rent for a condominium unit unless the landlord owned five or more rental units in the “dwelling.”

MUNICIPAL COURTS
STATE v. KUZMICS
Appellate Division, A-3084-04T3, January 4, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19045

Conviction following a trial de novo of the disorderly persons offense of harassment reversed and remanded for a new trial; the charges arose from a citizen’s complaint that was filed after a verbal confrontation that occurred in a store parking lot; the defendant correctly argued on appeal that his conviction had to be vacated because the complainant’s attorney failed to file the certification that private prosecutors are required to submit before Municipal Court trials pursuant to Rule 7:8-7(b) and State v. Storm; it was undisputed that the procedures set forth in Rule 7:8-7(b) were not obeyed, and reversal therefore was required under State v. Valentine.

ARBITRATION
KAUFMAN v. MARESCA
Appellate Division, A-3611-04T5, January 3, 2006, not approved for publication. (10 pages). Facts-on-Call Order No. 19042

Chancery Division order that denied the motion by the defendant retired doctor and the defendant real estate company to compel arbitration of the claims of the plaintiff doctor and the plaintiff medical practice affirmed in a dispute about the distribution of profits from the company and the amount of the practice’s rent for the space that it leased from the company; the doctors had operated the practice together and were equal partners in the company; before the plaintiffs filed this action for equitable relief, the defendants had filed a summary dispossess action in the Special Civil Part and an action alleging breach of the lease agreement in the Law Division, and the three actions later were consolidated; even if the plaintiffs’ equitable claims fell within the scope of the arbitration provision in the company’s operating agreement, and even if the provision permitted arbitration without the doctors’ mutual assent, the “unique circumstances” of this case militated against compelling arbitration; the Chancery Division selected the “optimal course” of allowing the consolidated matter to be resolved in the Chancery Division where the retired doctor had “less than clean hands,” where arbitration of the plaintiffs’ claims would not fully resolve the entire controversy, and where equity jurisprudence was “particularly adapted” to provide “complete justice.”


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