NEW JERSEY LAWYER

DAILY BRIEFING      10/18/2005


News Briefs

HIGH COURT ORDERING RECORDING OF CRIMINAL INTERROGATIONS
Electronic recording of criminal interrogations of suspects in serious crimes soon will be standard operating procedure by all police departments and law enforcement agencies in New Jersey. The New Jersey Supreme Court has agreed to a policy that effectively overlaps one already adopted by the attorney general. The court has published a new rule, 3-17, Electronic Recordation, which follows the recommendations of a special committee appointed after the justices decided to consider the issue in its decision last year in State v. Cook. The new rule states all homicide interrogations — from the Miranda warning to conclusion — should be recorded by Jan. 1. Questioning in other crimes should be recorded by Jan. 1, 2007. Attorney General Peter C. Harvey already ordered the recording of confessions in first- and second-degree crimes, with an eye to recording full interrogations by 2006. Some county prosecutors already are doing that. 10-17-05

ARGUMENTS READIED FOR SEPARATION-OF-POWERS CASE
The New Jersey Supreme Court next Tuesday will review how the separation-of-powers doctrine applies to itself when it hears opening arguments in In re Matter of P.L. 2001, Chapter 362. The case concerns the constitutionality of a 2001 law that enables probation officers, who are court employees, to carry firearms. The Probation Association of New Jersey, which represents 2,800 court officers, has said they need firearms for protection, while the Administrative Office of the Courts has argued the law allowing for arming officers infringes on the judiciary’s constitutional authority over court administration. The Appellate Division affirmed a ruling by Mercer County Judge Paulette Sapp-Peterson that struck down the statute in December 2003. 10-17-05

STATE BAR ASSOCIATION SEEKS NOMINATIONS FOR PRO BONO AWARD
The New Jersey State Bar Association’s Pro Bono Committee is accepting nominations for its annual award. The honor, whose criteria include the number of pro bono hours worked and its impact on helping the poor, is open to individuals, firms and corporate law departments. Nomination forms are available from James P. Condon, (732) 937-7513 or HYPERLINK "mailto:jcondon@njsba.com" jcondon@njsba.com. Submission deadline is Jan. 9. 10-17-05

HARASSMENT COMPLAINT DISMISSED AGAINST MUNICIPAL JUDGE
A complaint against Trenton Municipal Judge Louis S. Sancinito alleging he misused his bench position to harass a neighbor and force her to leave his Trenton community has been dismissed. Mercer County Judge Andrew J. Smithson threw out the criminal complaint because the plaintiff, Judith Meadows-Jones, now of Camden, failed to appear for a hearing. Meadow-Jones alleged Sancinito, a Trenton attorney, misused his judicial position to file charges against her daughter after one of her friends accidentally clipped his parked car and drove away. 10-17-05

IT’S BEEN RAINING CATS AND DOGS — AND ALLIGATORS?
When it comes to complaining about the recent deluge, Piscataway residents have a special claim to saying their community has been swamped. Police there discovered a 3-foot alligator in the back yard of a home. Officials are stumped. Lt. George Maurer said this is the first time in his 28 years on the force that he’s heard of an alligator in town. “I know we’ve had a lot of rain,” he chuckled. 10-17-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, OCTOBER 17, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, OCTOBER 17, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, OCTOBER 18, 2005.


APPROVED FOR PUBLICATION
ATTORNEY’S FEES
LEVINE v. LEVINE
Appellate Division, A-2596-03T1, approved for publication October 14, 2005. (17 pages). Facts-on-Call Order No. 92697

The Attorney’s Lien Act, N.J.S.A. 2A:13-5, does not authorize a trial court to dismiss a petition for an attorney’s lien based on its preliminary view derived from the evidence presented in the underlying action that the fees claimed by the attorney are excessive. The determination as to whether to enforce an attorney’s lien falls within the trial court’s equitable jurisdiction but must be based on the evidence presented at a plenary hearing and not on the court’s findings on an application for the award of attorney’s fees, to which the attorney was not a party.

NOT APPROVED FOR PUBLICATION
NEGLIGENCE
PATTERSON v. PENAMON
Appellate Division, A-725-04T2, October 17, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18666

Denial of the defendant’s motion for a new trial after a jury awarded the plaintiff $58,307.18 in an automobile negligence action affirmed; because he did not want to go through the pain of another back surgery, the plaintiff did not follow through after his doctor referred him to a neurologist; contrary to the defendant’s arguments on appeal, the trial court (1) correctly concluded that there was no adequate basis to instruct the jury on the failure to mitigate damages because the defendant did not offer testimony about the unreasonableness of the plaintiff’s action and instead relied on the doctor’s testimony, which did not state that a neurologist could provide treatment to alleviate the plaintiff’s symptoms, and (2) properly denied the defendant’s motion for a directed verdict, which was based on the plaintiff’s failure to meet the verbal threshold.

NEGLIGENCE
HARRIS v. RED BANK REGIONAL HIGH SCHOOL
Appellate Division, A-276-04T5, October 17, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18668

Summary judgment for the defendant Board of Education and the defendant referee affirmed in a negligence action arising from the plaintiff track team member’s fall on a wet track while competing for the Board’s high school in the 110-meter hurdles at a track meet held at another high school; it rained on the morning of the meet, which was held outdoors on an all-weather track; as to the Board, the plaintiff’s proofs did not raise a genuine dispute about whether its coach exercised reasonable care under the circumstances; as to the referee, she was entitled to limited immunity as an accredited sports official under N.J.S.A. 2A:62A-6.1 unless she committed a “willful, wanton, or grossly negligent act,” and it was unnecessary to consider that heightened standard because there was insufficient evidence to raise a jury question on negligence due to the failure to cancel the meet.

WORKERS’ COMPENSATION
WARD v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY
Appellate Division, A-5471-03T2, October 17, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18667

Final order of the Division of Workers’ Compensation that declared the respondent Port Authority of New York and New Jersey liable for medical treatment to relieve the effects of the petitioner former employee’s injury and that denied the petitioner any weekly compensation benefits affirmed; after he was injured, the petitioner received an accidental disability retirement pension from the New York State Pension Fund; the judge of compensation had determined that the petitioner was permanently disabled as a result of a compensable injury but that, under Wright v. Port Auth. of New York and New Jersey and Bunk v. Port Auth. of New York and New Jersey, the petitioner was not eligible for full benefits due to his pension; the judge correctly concluded that Wright and Bunk controlled.

ENVIRONMENTAL LAW
DZIOBEK v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION
Appellate Division, A-1107-04T2, October 17, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18669

Final decision of the Commissioner of the New Jersey Department of Environmental Protection that adopted the administrative law judge’s initial decision and that denied the petitioner’s application for a General Permit 6 affirmed; the petitioner sought the Permit to fill a 0.16-acre portion of his property that consisted of freshwater wetlands; the petitioner bore the burden of proof on the “critical issue” of whether the portion was “isolated wetlands”; the ALJ found the testimony of the DEP’s expert to be more persuasive than the testimony of the petitioner’s expert; the Commissioner’s decision was supported by competent and credible evidence, and there was no basis to interfere with the credibility findings in this case, which were dispositive of the ultimate issue.

REAL PROPERTY
PNC BANK, NA PITTSBURGH v. CHARLES
Chancery Division, Somerset, Hunterdon, and Warren Counties, F-21018-04, return date October 7, 2005, not approved for publication. By Williams, P.J. (6 pages). Facts-on-Call Order No. 18664

Second motion by the plaintiff mortgagee to deem its evidence of indebtedness sufficient in a foreclosure action granted; the mortgagee asserted that the promissory note that was executed with the mortgage was lost; the mortgagors failed to answer the foreclosure complaint, and the mortgagee could not enter judgment unless it provided the foreclosure unit with a court order deeming its evidence of indebtedness sufficient; the mortgagee’s original motion had been denied without prejudice due to a lack of proof to establish a 5 percent late charge and illegible proof of the mortgage’s adjustable interest rate clause; as to the late charge, 5 percent appeared to be the correct rate based on the mortgagee’s supplemental certification, which explained a late charge that was assessed in June 2004 and the calculation of that charge; as to the adjustable interest rate clause, the formula used to adjust the rate could not be ascertained from the documents that the plaintiff submitted, and the only evidence showed that the current rate was 9 percent.

CONTRACTS
CONSOLIDATED LINT, LLC v. WALLER
Chancery Division, Bergen County, BER-C-293-05, October 3, 2005, released October 7, 2005, not approved for publication. By Doyne, J. (15 pages). Facts-on-Call Order No. 18665

Motion for interim relief by the plaintiff denied in a dispute between two members of a limited liability company concerning financial management and the distribution of profits that were earned in a residential real estate venture that the parties participated in; the plaintiff sought (1) to preclude the individual defendant and the defendant entities from causing the company to expend funds to pay debts outside the ordinary course of business or to make payments to its investors, which included the defendants, (2) to appoint a fiscal agent to oversee the defendant entities’ operations, (3) to preclude the defendants from using the company’s funds to pay their costs and expenses, including attorney’s fees, and (4) to require the defendants to provide an accounting of the company’s financial transactions; the plaintiff was not entitled to interim relief because it failed to make a sufficient showing of irreparable harm or a likelihood of success on the merits; however, the defendants were precluded from using the company’s assets to pay for their attorney’s fees, and a freeze was imposed on the company’s remaining money.

ELECTIONS
WEINBERG v. BERGEN COUNTY DEMOCRATIC ORGANIZATION
Chancery Division, Bergen County, BER-L-6479-05, October 3, 2005, not approved for publication. By Doyne, J. (23 pages). Facts-on-Call Order No. 18663

On remand, five putative members of the Bergen County Democratic Committee declared eligible to vote to select an interim successor to fill the vacancy for the 37th District in the State Senate and to select the Democratic nominee to run for that seat in the November 2005 general election; the Appellate Division ordered a remand for “full consideration and disposition” of “all questions” about the five members’ eligibility, which had been challenged because the defendant Bergen County Democratic Organization was not timely notified about their appointment to the Committee following a June 2005 meeting; after the remand order was issued, the Chancery Division informed the parties that the five members would be declared eligible if it found that the June 2005 meeting was properly conducted but that the results of the meeting were not delivered to the Organization in compliance with its bylaws; it was “beyond peradventure” that the June 2005 meeting did not involve corruption, fraud, or “any improper conspiratory motive,” and it was conceded that the results of the June 2005 meeting were not delivered in compliance with the Organization’s bylaws.

MUNICIPAL CORPORATIONS
STEEPLECHASE VILLAGE, INC. v. TOWNSHIP OF EGG HARBOR
Law Division, Atlantic County, ATL-L-3101-05, October 3, 2005, not approved for publication. By Armstrong, A.J. (34 pages). Facts-on-Call Order No. 18662

In an action in lieu of prerogative writs to require the defendant Township and Township Committee to collect trash from the residents of the plaintiff mobile home park in the same way that the Township collects trash from its residents who do not live in mobile home parks, motion for summary judgment by the plaintiff denied, request for reimbursement of trash collection costs incurred by the plaintiff deemed moot, and cross-motion for summary judgment by the defendants granted; the Township’s practice of providing trash collection to all of its residents except for owners of manufactured homes in mobile home parks did not violate equal protection principles and was

consistent with the Legislature’s intent in the Manufactured Home Taxation Act to create a unique tax classification for manufactured homes in mobile home parks; the plaintiff’s belief that it would be cumbersome to seek a rent increase under the Township’s rent review ordinance to cover higher trash collection costs did not constitute an equal protection violation. Barker’s Trailer Court, Inc. v. Borough of Lakehurst distinguished.



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