NEW JERSEY LAWYER

DAILY BRIEFING      10/26/2005


News Briefs

DOCTORS TO PAY $3.5 MILLION FOR FAILURE TO DIAGNOSE
A Wannaque man who suffered a stroke and was left partially paralyzed has agreed to accept $3.5 million from two doctors who failed to diagnose the ailment. Pugliese v. Rametta settled after a four-day trial before Passaic County Judge Anthony J. Graziano. Mark Rametta of Ringwood will pay $2 million and Andrew Grossman of Chilton Memorial Hospital in Wayne will pay $1.5 million for failing in separate evaluations to identify a blocked artery that if remedied through surgery could have prevented the stroke that John Pugliese, now 45, suffered in September 2002. David A. Mazie of Roseland’s Nagel Rice & Mazie represented Pugliese, Craig S. Combs Jr. of Giblin & Combs in Morristown defended Rametta, and Robert W. Donnelly Jr. of Cranford’s Dughi Hewit & Palatucci represented Grossman. 10-25-05

NJ AMONG THREE STATES WITH NO YOUTH OFFENDERS SERVING LIFE
New Jersey is among only three states with no inmates serving life terms for crimes committed before age 18, according to a national study that finds wide disparity in the conviction of youth offenders. The Amnesty International and Human Rights Watch study found that nationwide 2,225 offenders are serving life terms for committing crimes as youths, and that black offenders are 20 times more likely than whites to be convicted for the same crime and they receive life-without-parole sentences 10 times more often than whites. New Jersey also has one of the nation’s oldest minimum-age restrictions for a life sentence without parole — 14. By contrast, Pennsylvania, which has no such minimum age, has 332 inmates serving life terms for crimes committed as youths — one of the nation’s highest totals. 10-25-05

STATE CANCELS HALLOWEEN FOR SEX OFFENDERS
In addition to facing increasing restrictions on where they may live, convicted sex offenders cannot celebrate Halloween in New Jersey. The state Parole Board has set a 7 p.m. Halloween curfew for the approximately 2,200 sex offenders it supervises and is prohibiting them from taking in any trick-or-treaters, including their own children. The crackdown comes as municipalities across the state are adopting ordinances that prohibit sex offenders from living near areas where children congregate. Parole Board vice chairman Paul Contillo called the curfew “a no-brainer,” adding, “It’s obvious what the danger would be of children knocking on someone’s door today.” 10-25-05

STATE JUDICIARY TECHNOLOGY PROJECTS WIN NATIONAL AWARDS
The New Jersey judiciary won two awards from the Center for Digital Government, a national group supporting government technology efforts. The state’s NJMCDirect online ticket-payment system won in the public service category and its program that produces electronic criminal complaints online won in the collaboration among organizations category. 10-25-05

NEW PITCH ON SLEEPWALKING CASE
It may be a stretch for the defense, but Cumberland County Judge Richard J. Geiger is considering a request to set aside the child-endangerment conviction of a man who said chronic sleepwalking caused him to end up in bed with his girlfriend’s teenage daughter. Jonathan Hutchinson, 34, was convicted in August of three counts of child endangerment, and acquitted of 11 other charges including sexual assault for several alleged incidents between January 2001 and January 2002. His attorney, Bridgeton solo John P. Morris, has argued the jurors were not correctly charged and that Hutchinson could not have endangered the girl because he was sleepwalking. Geiger said he would rule Nov. 14. 10-25-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, OCTOBER 25, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, OCTOBER 25, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, OCTOBER 26, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, OCTOBER 25, 2005.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
GIANNETTI v. TAYLOR-WILLNER
Appellate Division, A-332-04T1, October 25, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18708

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial, and denial of the defendant’s motion to dismiss due to the plaintiff’s failure to supply a physician’s certification affirmed; because it was based solely on the serious-life-impact prong of the Oswin test, summary judgment had to be vacated under DiProspero v. Penn; as to the physician’s certification, it was not an abuse of discretion for the trial court to reject the defendant’s motion to dismiss and to allow the plaintiff time to submit her certification; under Casinelli v. Manglapus, the remedy for a violation is fact-sensitive and ranges from an order to compel production to dismissal; the remedy chosen by the judge was “well within” his “broad discretionary authority” under the facts of this case.

PERSONAL INJURY
SILVEY v. ZIS
Appellate Division, A-6568-03T5, October 25, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18712

Verdict for the defendant in a personal injury action affirmed; the case arose from an outdoor concert at which the defendant allegedly caused the plaintiff to hurt her knee; the parties differed as to the cause of the injury and as to whether the plaintiff had been on a bicycle ride the day after the concert; the trial court rejected the plaintiff’s various attempts to exclude from evidence a medical record that attributed to her a statement that the pain in her knee had worsened the day after the concert “while cycling”; the jury found the defendant negligent but also found that his negligence was not the proximate cause of the plaintiff’s injury; contrary to the plaintiff’s appellate arguments, (1) there was no abuse of discretion in the trial court’s evidentiary ruling on the admissibility of the medical record, (2) the trial court did not err by submitting the defendant’s comparative negligence defense to the jury or by instructing the jury on comparative negligence, and (3) the verdict did not result from “clear error or mistake by the jury” and was supported by sufficient evidence.

TORT CLAIMS ACT
BLAIR v. ASBURY PARK HOUSING AUTHORITY
Appellate Division, A-500-04T5 and A-624-04T5, October 25, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18713

Summary judgment for the defendant Housing Authority in the plaintiff tenant’s personal injury action affirmed; the tenant slipped and fell on black ice on the Authority’s sidewalk three days after a storm that left 23 inches of snow; actual notice of a dangerous condition under the Tort Claims Act was not a factor, and the trial court properly determined that the tenant did not establish that the Housing Authority had constructive notice because there were no earlier complaints about black ice after the snow was removed, because the tenant had not earlier observed black ice, even though he walked regularly in the area, and because the tenant had not offered expert evidence that the remaining snow would melt onto the cleaned sidewalk to create a hazardous condition upon freezing; the tenant could not rely on the opinion of his expert to establish that the black ice had been on the sidewalk for a long time because the expert provided only a net opinion.

CIVIL PROCEDURE
ROSENBLUM v. BOROUGH OF CLOSTER
Appellate Division, A-3301-04T1, October 25, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18714

Denial by the Bergen County Assignment Judge of the application of the pro se plaintiff “overly litigious citizen” for permission to file an action in lieu of prerogative writs reversed and remanded for processing “in the ordinary manner”; the plaintiff sought to challenge the defendant Borough’s recently adopted land use ordinance for violating New Jersey law, but he had been barred since 1995 by a Law Division order from filing any civil complaint without judicial approval; the Assignment Judge provided a copy of the plaintiff’s proposed complaint to the Borough for comment and denied the application after considering those comments; on the “only substantial issue” raised by the parties, the plaintiff’s complaint stated a nonfrivolous cause of action and should have been allowed to be filed; the purpose of the judicial approval process — protecting the courts and the parties from wasting time and money — is “entirely undercut” when a defendant is invited to participate in the process, which should involve only a review of the complaint and other documentation that the court asks a plaintiff to provide.

EMPLOYMENT LAW
CARMONA v. RESORTS INTERNATIONAL HOTEL, INC.
Appellate Division, A-5814-03T2, October 25, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18711

Judgment for the plaintiff employee in a Law Against Discrimination retaliation action and order denying the defendant employer’s various post-trial motions affirmed; the plaintiff, who is Hispanic, was fired the day after reporting to the employer’s equal employment opportunity officer an instance of apparent disparate treatment between Hispanic and Caucasian employees in the handling of sick leave; the employer claimed that it fired the plaintiff because of improper conduct on the job; the jury returned a unanimous verdict for the plaintiff; contrary to the employer’s appellate arguments, (1) the trial court correctly denied the employer’s request for a special jury instruction on the reasonableness of, and the plaintiff’s good-faith belief in, the underlying complaint of discrimination because the LAD does not impose such a requirement on claimants and because the issue at trial was whether there had been retaliation against the plaintiff, (2) all of the trial court’s evidentiary rulings were well within its discretion, and (3) the damages award was “sufficiently grounded in the evidence to render it impregnable on review.”

DOMESTIC VIOLENCE
BLUMENTHAL v. BLUMENTHAL
Appellate Division, A-3840-04T3, October 25, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18715

Final domestic violence restraining order against the defendant husband affirmed; the plaintiff wife testified that the husband, who had moved out of the marital home about three weeks earlier, arrived at the marital home to pick up the parties’ daughter and that, after the wife asked him to leave, the husband forced open the door, which struck her in the midsection; at the time, the wife was in her fifth month of pregnancy; contrary to the husband’s arguments on appeal, (1) the trial court correctly concluded that the husband had committed a simple assault and (2) the circumstances did not constitute “domestic contretemps” under Corrente v. Corrente because the trial court had found an assault rather than a “mere act of harassment” by one spouse against the other during a deteriorating marriage.

HUSBAND AND WIFE
IN RE ESTATE OF GINSBERG
Appellate Division, A-5154-03T3, October 25, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18710

Orders entered by the Family Part and the Probate Part in actions by the former wife of a decedent affirmed substantially for the reasons expressed by the trial courts; the plaintiff and the decedent were divorced in 2001; the parties’ property settlement agreement called for them to maintain life insurance for the benefit of their two children and to name a local bank as the trustee until the emancipation of the younger child; because the parties claimed that they could not find banks willing to serve as trustees, the Family Part modified the PSA in a June 2002 order and required the parties to designate each other as trustee of each other’s insurance policy; the decedent died in an accident in August 2002; the orders on appeal (1) directed the plaintiff and a certain bank to serve as co-trustees of the irrevocable insurance trust established by the decedent for the benefit of the children, (2) denied the plaintiff’s motion for post-judgment discovery of the decedent’s life insurance policies, and (3) directed the equal distribution of the parties’ retirement accounts pursuant to the PSA.

CONSUMER PROTECTION
COYLE v. WILLIAMS
Appellate Division, A-5964-03T1, October 24, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18707

Denial of attorney’s fees and treble damages on the plaintiff swimming pool owner’s claims for violations of the Consumer Fraud Act arising from a leaky pool liner installed by the defendants reversed and remanded; although the trial court found that the defendant had violated regulations under the Act, it denied attorney’s fees and treble damages based on its conclusion that the plaintiff had failed to prove an ascertainable loss caused by the regulatory violations; those violations included the defendants’ failure to notify the plaintiff about applicable warranties in the parties’ home repair contract; as to attorney’s fees, the plaintiff was entitled to reasonable attorney’s fees under the Act, regardless of whether the defendants’ violations of the Act caused actual damages; as to treble damages, the defendants’ failure to notify the plaintiff of the manufacturer’s warranty for the liner deprived her of a remedial measure that she could have pursued to avoid additional expenses, which led to an ascertainable loss.


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