NEW JERSEY LAWYER

DAILY BRIEFING      10/25/2005


News Briefs

NORTHERN NJ LEADS IN CORP. LAW DEPARTMENTS PAYING MORE
Northern New Jersey is among the leading areas for corporations paying more to compete with law firms for top talent, according a survey by the Association of Corporate Counsel. It found that corporations nationwide significantly increased their legal department salaries and bonuses this year, and those in northern New Jersey and New York City exceeded the rest of the country by 23.8 percent in total compensation. Chief legal officers’ salaries nationally increased 4.1 percent from a year ago to a median $280,000 and their bonuses increased 39.5 percent to a $150,000 median, while senior attorneys’ salaries increased 6.2 percent to a $129,000 median and some high-level specialists saw bonuses jump more than 50 percent; the national median bonus for senior attorneys this year is $29,100. Altman-Weil Inc. consultants collaborated on the survey. 10-24-05

STATE ARRESTS 1,500 IN TWO YEARS FOR FAKE DRIVER’S LICENSES
New Jersey’s two-year crackdown on fraudulent driver’s licenses has resulted in more than 1,500 arrests. The state has credited stricter security standards and increased training of licensing personnel that the Motor Vehicles Commission launched after it was created to replace the former Division of Motor Vehicles. The state also has assigned local police and undercover investigators to local licensing offices. 10-24-05

ENGLAND TO LET NON-LAWYERS OWN OR PARTNER WITH LAW FIRMS
The British government is moving ahead with a radical reform of legal services that would allow the sale of law firms to outside investors and permit non-lawyers to enter into partnerships with lawyers. The regulations, which would make England the most liberal country for law firm operations, are expected to take effect in two years. 10-24-05

BANKING AGREEMENT CANNOT ALTER COMMERCIAL CODE STATUTE
In a ruling of major interest to a financial community that transfers an estimated $1 trillion daily, a New York appeals court has held that a businessman is owed a full refund from a bank that permitted unauthorized transfers from his account even though he did not comply with the bank’s notice requirements. In Regatos v. North Fork Bank, the panel found that a one-year statute for allowing suits to be filed under the state’s Uniform Commercial Code (UCC) cannot be varied by agreements. The bank had argued it was not responsible for the $600,000 in transfers because the businessman-client did not report the funds missing within the 15-day notice required in their agreement. The appellate panel said allowing the bank’s notice agreement to alter the UCC’s repose statute would reduce the law’s ability to encourage banks to be secure. 10-24-05

BAKER HAS RECIPE FOR SUCCESS IN CAREER CHANGE FROM LAW
Lawyers considering changing careers may want to look at Warren Brown. Five years after quitting his litigator’s post with the U.S. Department of Health and Human Services to open a bakery, he’s tapped to host a baking how-to program on cable television’s Food Network. His bakery, which has become a hotspot in Washington, gets orders from around the country. Brown, 35, said he switched careers because he was “daydreaming about food all the time” while practicing law. One thing is for sure: he’s making a lot more dough. 10-24-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, OCTOBER 24, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, OCTOBER 24, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, OCTOBER 25, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON MONDAY, OCTOBER 24, 2005.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
POLLNER v. PERRY
Appellate Division, A-2125-04T3, October 24, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18703

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; relying on an unpublished decision of the Appellate Division that distinguished a disc bulge with no impingement from a disc herniation, the trial court determined that the plaintiff had not presented objective evidence of a permanent injury; the plaintiff’s disc bulge at L4-5 was “similar to, but less extensive than,” the injury that was permitted to proceed in the New Jersey Supreme Court’s recent decision in DiProspero v. Penn, and her doctors stated that her injury was permanent; although trial courts have differed on the issue of whether a disc bulge is a permanent injury, they must accept as true a doctor’s opinion that an injury is permanent when deciding a summary judgment motion; the trial court also erred by relying on an unpublished decision, even though they “are now widely available on the internet.”

WORKERS’ COMPENSATION
WALDEN v. EXCEL CONSTRUCTION & DESIGN CO.
Appellate Division, A-1564-03T3, October 24, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18704

Division of Workers’ Compensation order that granted the petitioner medical and temporary benefits affirmed; the judge of compensation concluded that the work effort and injuries connected with the petitioner’s performance of duties for the respondent employer were independent of and different from his work effort for three previous employers and that, based on the nature of the injuries that the petitioner sustained while working for the first employer and on his medical history since then, the respondent was solely responsible for the benefits that were attributable to his most recent injuries; there were no grounds to reject the judge’s decision; the judge did not err when she gave greater weight to the opinions of the examining physician than the opinions of the treating physician, and she did not misapply Peterson v. Herrman Forwarding Co.

EMPLOYMENT LAW
CAHILL v. PARKWAY INSURANCE CO.
Appellate Division, A-5579-03T2, October 24, 2005, not approved for publication. (22 pages). Facts-on-Call Order No. 18706

Dismissal of the plaintiff human resource manager’s 10-count complaint against her former employer, its parent company, and her supervisor for failure to state a claim under Rule 4:6-2(e) affirmed in part, reversed in part, and remanded; the defendants’ motion to dismiss was filed before they answered and before discovery; the plaintiff abandoned her objection to the dismissal of four counts, and two other counts were properly dismissed; however, the complaint stated claims (1) for handicap discrimination under the Law Against Discrimination arising from the defendants’ bad faith during the accommodation process, (2) for retaliation under the LAD and the Conscientious Employee Protection Act arising from her objection to the supervisor’s alleged age discrimination against another employee, and (3) for sexual harassment/hostile work environment under the LAD arising from a joke told by an executive of the employer and the supervisor’s response.

EDUCATION
IN RE TENURE HEARING OF MUJICA
Appellate Division, A-3883-03T1, October 24, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18705

Final decision of the State Board of Education on remand that dismissed the petitioner tenured teacher affirmed; in the prior appeal, the Appellate Division (1) had affirmed the State Board’s decision that sustained seven charges of conduct unbecoming a teacher that arose from the petitioner’s “sexually inappropriate remarks and gestures” to his students but (2) had remanded for reconsideration of the penalty of dismissal because the administrative law judge and the Commissioner of Education had considered prior unadjudicated charges; on remand, the Commissioner again determined that dismissal was warranted without giving any weight to prior unadjudicated charges, and the State Board affirmed; the petitioner’s dismissal was supported by the record and was not arbitrary or capricious.

MEDICAID
L.S. v. STATE OF NEW JERSEY DEPARTMENT OF HUMAN SERVICES, DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Appellate Division, A-571-04T2, October 21, 2005, not approved for publication. (34 pages). Facts-on-Call Order No. 18701

Final decision of the Division of Medical Assistance and Health Services that established the petitioner nursing-home resident’s eligibility date for extended Medicaid benefits as July 1, 2003 instead of December 1, 2002 affirmed; a completed application submitted on July 1, 2003 by the nursing home on behalf of the petitioner sought long-term Medicaid benefits retroactive to December 1, 2002; in March 2004, funds from the petitioner’s IRA were applied to pay the nursing home’s bill through November 30, 2002; the administrative law judge’s initial decision concluded that the petitioner’s eligibility began when her assets fell below the $2,000 limit of N.J.A.C. 10:71-4.5 on December 1, 2002; however, the Division concluded that there was no legal basis for eligibility before the July 1, 2003 application because resources are reduced only when the funds are actually spent, not when they “hypothetically” could have been spent on an outstanding bill; the Division did not act in an arbitrary, capricious, or unreasonable manner, and its decision was supported by the record.

DOMESTIC VIOLENCE
STATE v. HAAS
Appellate Division, A-2772-04T5, October 21, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18702

Conviction of domestic violence contempt reversed; a final domestic violence restraining order against the defendant and in favor of his ex-wife provided that telephone contact between them was “permissible to address parenting issues only”; the ex-wife filed a criminal complaint alleging that the defendant had harassed her and had violated the FRO when he told her to “have another martini” and called her a “drunk” during a cell phone conversation that occurred while the ex-wife was waiting at the defendant’s address to pick up their daughter after visitation; the trial court acquitted the defendant of harassment but concluded that he had violated the no-contact provision of the FRO; however, the contact at issue “obviously” concerned a parenting issue, and the defendant’s “sarcastic comment” could not constitute the basis for a knowing violation of the FRO in the absence of a finding that his comment constituted harassment.

DOMESTIC VIOLENCE
STATE v. KOLENDA
Appellate Division, A-2044-04T5, October 21, 2005, not approved for publication. (27 pages). Facts-on-Call Order No. 18700

Conviction of domestic violence contempt reversed; the criminal complaint alleged that the defendant violated a final domestic violence restraining order when he entered his ex-wife’s driveway and placed a phone call to her; the trial court found the defendant guilty of violating the FRO because he had used language that was “harassing” and “abusive”; reversal and remand would have been required because the pro se defendant was not informed of his right to counsel, of his right against self-incrimination, and of the identity of a State witness; in addition, the conviction had to be reversed because, although the criminal complaint charged the defendant with violating the FRO’s “no contact provision,” he was convicted of harassing conduct, which was not charged in the complaint.

CRIMINAL TRIALS
STATE v. GENTILELLO
Appellate Division, A-671-04T2, October 21, 2005, not approved for publication. (37 pages). Facts-on-Call Order No. 18699

Convictions (1) by the jury of second-degree vehicular homicide and three counts of fourth-degree assault by auto and (2) by the trial judge of driving while intoxicated reversed and remanded; the convictions arose from an accident that occurred when the defendant, who was driving east, abruptly turned left and struck a vehicle that was traveling west; as to the convictions of vehicular homicide and assault by auto, a new trial was necessary because the jury instructions regarding the required element of recklessness were likely to confuse and mislead the jury; the trial judge did not err by issuing the Model Jury Charge on the definition of recklessness, but he erred by providing examples to the jury of conduct that was negligent, not reckless; as to the conviction of DWI, a new trial was necessary due to the trial judge’s erroneous evidentiary rulings and his failure to make findings of fact to support the conviction.


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Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


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