NEW JERSEY LAWYER

DAILY BRIEFING      01/10/2006


News Briefs

CODEY NAMES SEVEN MORE TO JUDGESHIPS
Making full use of his last few days to get Senate approval of his appointments, acting Gov. Richard J. Codey has nominated three new Superior Court judges, two administrative law judges and two workers compensation judges. Named to the Superior Court are Arthur Bergman, a partner at Sokol Behot & Fiorenzo in Hackensack; Sherry Hutchins Henderson, an assistant U.S. attorney in Newark; and David H. Ironson, a partner at Einhorn Harris Ascher Barbarito Frost & Ironson in Denville. Stuart Peim, currently with the Criminal Part in Union County, was nominated for reappointment. Codey’s latest administrative law choices are Barry E. Moscowitz of Moscowitz & Novin in Hackensack and a trustee of the Essex County Bar Association, and Ronald W. Reba of South River. Chosen as workers compensation judges are J. Michael Blake, an assistant deputy with the Public Defender Office in Newark, and J. Patrick Roche of Maplewood. 1-6-06

FAR-REACHING CIVIL RIGHTS BILL LIKELY TO DIE A QUIET DEATH
A landmark expansion of the state’s Law Against Discrimination (LAD) that passed the Senate 37-0 in June has apparently stalled in the Assembly and is likely not to be taken up today, the last day of the current legislature. A provision that would ban businesses requiring job applicants to waive their right to a jury trial in favor of arbitration on discrimination claims as a condition of being hired or keeping their job has proved a sticking point. Other provisions would boost LAD in the areas of the rights of pregnant women, the disabled and independent contractors. For full details, see the Jan. 9 New Jersey Lawyer. 1-6-06

FORMER JUDGE JOINS BOARD OF RESEARCH, EDUCATION INSTITUTE
Former Superior Court Judge Marina Corodemus, who oversaw mass torts, has joined the corporate board of The Sedona Conference, a nonprofit research and educational institute dedicated to the advanced study of law and policy in the areas of complex litigation, antitrust law and intellectual property rights. The organization runs conferences and mini think tanks involving judges, lawyers, experts and academics “to move the law forward in a reasoned and just way.” 1-6-06

MAXIMUM FINES FOR MUNICIPAL VIOLATIONS INCREASE TO $2,000
The maximum fine for municipal ordinance violations is now $2,000 under a measure signed into law by acting Gov. Richard J. Codey that ups the maximum from $1,250. The maximum last was changed four years ago, when it increased to $250. The new law also requires that any municipality seeking to impose a fine of more than $1,250 on a property owner for any housing or zoning violations must provide 30 days for the owner to fix the problem. After that, a judge could fine a violator up to the $2,000 maximum. 1-6-06

COURT RULES BASEBALL INJURY JUST PART OF THE GAME
A man hit in the face by a baseball during fielding practice won’t be collecting the $340,000 awarded by a judge. The California Supreme Court unanimously rejected an appeal by Scott Vogel, whose award had been overturned by a state Court of Appeal in San Francisco. The appellate panel said in Vogel v. American Amateur Baseball Congress that while the player who threw the ball was negligent and perhaps reckless, it nevertheless found that baseball players implicitly accept the risk they might be struck by a carelessly thrown ball. The injuries sustained by Vogel required surgery and caused permanent damage to his eye. Meanwhile, in New Jersey, a bill to immunize owners of ballparks from suits stemming from injuries to spectators caused by foul balls has been approved by the Senate Judiciary Committee and awaits full Senate consideration Monday. The New Jersey State Bar Association and the Association of Trial Lawyers of America-New Jersey oppose that measure. 1-6-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, JANUARY 6, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JANUARY 6, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, JANUARY 9, 2006.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON FRIDAY, JANUARY 6, 2006.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
ERICKSON v. LEONARD
Appellate Division, A-3410-04T1, January 6, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19066

Summary judgment for the defendant attorneys in a legal malpractice action by the plaintiff builder, who was their former client, reversed and remanded for trial; in the underlying action, the builder — but not his corporation — was sued for a major structural defect in a house, even though the builder had signed the construction contract in his personal capacity only as to the term that required him to return a deposit if the house was not built; the attorneys did not move to have the builder dismissed from the action based on his lack of personal liability, and the builder followed their advice and settled; in the malpractice action, the trial court erred by dismissing the builder’s claim that the attorneys had failed to pursue the issue of his personal liability; reasonable jurors could have concluded that the builder had a viable defense to personal liability that the attorneys should have asserted on his behalf instead of advising him to settle.

PREMISES LIABILITY
BELL v. ALOE VILLAGE, LLP
Appellate Division, A-3203-04T2, January 6, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19065

Judgment of $550,197.96 entered for the plaintiff in a negligence action against the defendant owners of an apartment complex and denial of the defendants’ motions for a new trial and a directed verdict affirmed; the plaintiff was injured when she fell while climbing down from the balcony of her boyfriend’s apartment after a hinged security bar locked the sliding door between the balcony and the apartment; at trial, the plaintiff’s expert stated, and the boyfriend confirmed, that the security bar, which the defendants had installed, was practically certain to fall into the locked position every time the door was closed; the jury found the plaintiff 30 percent liable and the defendants 70 percent liable; the verdict was not a miscarriage of justice because (1) the defendants had a general duty to exercise reasonable care against foreseeable harm to others, (2) the expert proof indisputably showed that the defendants had improperly installed and maintained the security bar, and (3) there was sufficient evidence for the jury to conclude that the accident was foreseeable and that the defendants’ conduct was “a substantial factor” in bringing the accident about.

DOMESTIC VIOLENCE
SWEENEY v. UNGARO
Appellate Division, A-5687-04T3, January 6, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19063

Final domestic violence restraining order against the defendant boyfriend affirmed; the plaintiff girlfriend testified that her purse strap became caught on the handle of the metal door to the defendant’s apartment when she tried to leave, that the defendant hit her with the door, that the defendant strangled her, and that she bit the defendant to stop the strangling; the defendant asserted that the plaintiff was the aggressor and that he had acted only to protect himself and his property, but the trial court made a credibility determination that the defendant was the aggressor; the record was sufficient to sustain the trial court’s conclusion that the defendant had committed an assault under N.J.S.A. 2C:12-1a and that he had committed an act of domestic violence that merited the entry of the FRO, even though there was no prior domestic violence between the parties.

DISCOVERY
WATERFORD TOWNSHIP CIVIC AND EVENTS ASSOCIATION v. WATERFORD TOWNSHIP MUNICIPAL INVESTIGATION COMMITTEE
Appellate Division, A-5928-03T5, January 6, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19064

Judgment that quashed subpoenas issued by the defendant municipal investigation committee and that limited the investigation of the business records of the plaintiff association and its members remanded for reconsideration; the plaintiff consisted of schools, churches, other groups, and citizens, and it used municipal resources; the trial court found that the defendant had the authority to examine the plaintiff’s activities on public property, and it allowed the subpoenas to ascertain the plaintiff’s insurance coverage and whether the plaintiff was using the municipality’s tax identification number to save on sales taxes; the plaintiff argued that the defendant had no authority to investigate “a private association”; on appeal, the parties’ counsel agreed that the municipality had since passed resolutions about the sponsorship of “Waterford Days” and had exclusively sponsored that event for two years; remand was necessary in light of the desire, if any, of the defendant to pursue the investigation, and any subpoena must relate to the municipality’s “legitimate concern about the expenditure of public funds and public liability” and must be “reasonably limited in scope and time.”

MUNICIPAL COURTS
STATE v. SOUL
Appellate Division, A-2149-04T2, January 6, 2006, not approved for publication. (13 pages). Facts-on-Call Order No. 19067

Convictions based on the defendant’s plea of guilty to driving while intoxicated and failure to maintain a lane vacated, and the matter remanded to the Municipal Court for a new trial; the defendant sought to vacate her plea due to the Municipal Court’s failure to engage her in the proper colloquy before accepting the plea; the Municipal Court had incorrectly assumed “after only a brief financial inquiry” that the defendant was not indigent; the plea and the convictions had to be vacated because the Municipal Court did not properly determine the defendant’s indigency and explain her entitlement to appointed counsel at no cost.

WORKERS’ COMPENSATION
AVILES v. NIELSON & BAINBRIDGE
Appellate Division, A-1288-04T5, January 5, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19062

Orders that dismissed the petitioner worker’s claims arising from a hernia and from other disabilities, including orthopedic, pulmonary, neurologic, and urologic disabilities, affirmed; as to the hernia, the existence of the hernia was undisputed, and the respondent employer’s expert stated that the hernia would result in some disability; however, the judge of compensation (1) properly credited the opinion of the employer’s expert, (2) properly found that there was insufficient evidence that the hernia was work-related, and (3) properly found that the claim was deficient due to a lack of notice to the employer; as to the other disabilities, the record supported the judge’s findings that there was a lack of credible objective medical evidence to support the claims, that the opinions of the employer’s experts should be given greater weight than the opinions of the worker’s experts, and that the worker had not met his burden of proving work-related disabilities.

CONTRACTS
SOFTPRO iTECHNOLOGY PARTNERS, LLC. v. SCOSYS, INC.
Appellate Division, A-418-04T3, January 5, 2006, not approved for publication. (3 pages). Facts-on-Call Order No. 19061

Summary judgment for the defendant company affirmed in an action arising from the sale of its business; the parties had orally agreed that the plaintiff company would purchase all of the defendant’s assets or stock, and the plaintiff paid the defendant $50,000; the parties also executed an initial agreement that provided that a formal agreement would be drafted if the parties elected to proceed with the transaction; the parties never formally agreed on a purchase price, and the plaintiff was repaid the $50,000 when the defendant’s business was sold to a third party; the plaintiff claimed that the $50,000 was a down payment rather than a loan and that the purchase price could be determined by a formula; however, there never was a contract of sale because the parties “obviously contemplated and intended” in the initial agreement that the transaction would be evidenced by a formal written agreement and because such an agreement never was drafted or signed.

HUSBAND AND WIFE
CETIN v. CETIN
Appellate Division, A-2680-04T2, January 5, 2006, not approved for publication. (22 pages). Facts-on-Call Order No. 19059

Final judgment of divorce that awarded the plaintiff wife rehabilitative and reimbursement alimony and that ordered the defendant husband to pay fees for the court-approved Turkish interpreter affirmed in part, modified in part, and reversed in part; as to rehabilitative alimony, the trial court’s determinations that the wife needed at least an associate’s degree to become self-supporting and that the cost of that degree was $7,000 was consistent with the evidence; as to reimbursement alimony, which the trial court awarded in the amount of $200 per week for two years based on the time that the wife worked in the husband’s store without pay, the judgment had to be modified to label the award as limited-duration alimony; as to both alimony awards, the trial court’s findings regarding the husband’s income and the need for the awards were sufficiently based on the evidence; as to the interpreter’s fees, the burden of paying the fees was improperly shifted from the judiciary to the husband; the trial court did not err by failing to advise the husband, who appeared pro se, that he should have retained an attorney.

DISCOVERY
ROSENBLUM v. CGI COMMUNICATIONS, INC.
Appellate Division, A-4915-04T1, January 5, 2006, not approved for publication. (3 pages). Facts-on-Call Order No. 19060

Dismissal with prejudice of the plaintiff’s action in lieu of prerogative writs for failure to provide discovery affirmed; the action challenged a resolution that was adopted by the defendant Borough’s Council and that ratified the defendant Mayor’s decision to enter into a contract with the defendant company to install banners on lampposts in the Borough; the plaintiff claimed that installing the banners violated a Borough ordinance governing signage; after the plaintiff did not answer the Borough’s interrogatories, the Borough’s motion for dismissal without prejudice was granted in November 2004; by March 2005, the plaintiff still had not answered the interrogatories, and the Borough’s motion to dismiss with prejudice pursuant to Rule 4:23-5(a)(2) was properly granted.

FROM THE ADMINISTRATIVE AGENCIES
PENSIONS AND BENEFITS
DABROWSKI v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM
OAL Docket No. TYP 2681-05S, Agency Docket No. PERS 1185563, Initial Decision: November 15, 2005, Final Agency Decision: December 22, 2005, released for publication December 27, 2005. By Masin, ALJ. (8 pages).

The Board of Trustees of the Public Employees’ Retirement System adopted the administrative law judge’s initial decision that denied the application for accidental disability retirement benefits of the petitioner, who was an institutional attendant at the Warren County Nursing Home. The petitioner’s attorney conceded that she had to prove that both an incident that occurred on April 18, 2003 and an incident that occurred on October 9, 2003 were traumatic events because she lacked the medical documentation to establish that either of the incidents was an independent basis for the petitioner’s permanent and total disability. Because the Board had accepted that the October 9 incident was a traumatic event, the ALJ focused solely on whether the April 18 incident was a traumatic event. During the April 18 incident, which occurred when the petitioner attempted to move a patient from his wheelchair into a shower chair, the patient head-butted the petitioner and pinched her arm, and the petitioner slipped on shampoo that was on the floor. The ALJ concluded that the “several elements” of the April 18 incident — the head-butt, the pinch, and the slip — did not amount to the “great rush of force or uncontrollable power” required by Kane v. Board of Trustees, Police and Firemen’s Ret. Sys.


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