NEW JERSEY LAWYER

DAILY BRIEFING      10/31/2005


News Briefs

DOCS GET MORE THAN STATE SPECIFIED FROM MED-MAL SUBSIDY FUND
Doctors are receiving more state money to subsidize their medical-malpractice premiums than the legislature specified last year when it created a subsidization fund in part with a $75 annual assessment against lawyers and others. In a number of instances, doctors in so-called high-risk practices are getting from $2,200 to nearly $7,500 above the actual increase in their insurance bills from 2003 to 2004. For a full story, see the Oct. 31 New Jersey Lawyer. 10-28-05

PD HAILS SUPREME COURT CLARIFICATION ON PROBABLE CAUSE REP
The Public Defender’s Office is hailing last week’s New Jersey Supreme Court ruling that it says clarifies that defendants have a constitutional right to counsel at probable cause hearings. Public Defender Yvonne Segars-Smith said the ruling in State v. Dennis brings “absolute clarity” to the issue. Andrew Dennis claimed his Sixth Amendment rights were violated when he did not have counsel at the probable cause hearing that preceded his conviction for robbing and shooting a drug dealer in Atlantic City. The justices unanimously upheld the conviction, finding that having counsel would not have altered the trial’s outcome, and they specified that defendants are entitled to counsel at probable cause hearings in all future cases. The justices cited Coleman v. Alabama, which dealt with the appointment of counsel for an indigent at a preliminary hearing. 10-28-05

JURY AWARDS $3.5 MILLION FOR LANDLORD NEGLIGENCE
A Monmouth County jury awarded $3.5 million to the relatives of five-year-old Jasmine Rashid killed in a 2001 fire at their rented home in Neptune. After an eight-day trial before Judge Louis F. Locascio, the jury in Ortiz v. John D. Pittenger decided the landlord, John D. Pittenger Inc. of Neptune, was more negligent than others in the case for failing to install an adequate alarm system. Anthony F. Malanga Jr. and Charles J. Uliano of Gaccione, Pomaco & Malanga in Belleville represented the girl’s family, and Martin R. McGowan Jr. of Methfessel & Werbel in Edison defended. 10-28-05

PORT AUTHORITY FACING 400 SUITS SEEKING UP TO $1.8 BILLION
The Port Authority of New York and New Jersey faces suits from 400 plaintiffs seeking up to $1.8 billion in the wake of the New York state court ruling that the agency was negligent in its safeguarding against the 1993 terrorist attack at the World Trade Center. The attack killed six people and injured 1,000. Anthony R. Coscia, the Port Authority chairman who disclosed the number of suits pending, said settlements have been reached with the estates of five of those killed and talks are underway with the other victim’s estate. The Port Authority likely will appeal. 10-28-05

CAN YOU BEAT ‘NEW JERSEY: WE’LL WIN YOU OVER’?
It’s been all over the media, but here’s your crack. If you have any idea for a catchy slogan for the state, acting Gov. Richard J. Codey wants to hear it. He is accepting suggestions, looking to improve on a slogan the state paid $260,000 for and he subsequently rejected. The gonged slogan, “New Jersey: We’ll Win You Over,” came from the Lipincott/Mercer marketing firm of New York. New suggestions the state already has received include, “New Jersey — We Have it All,” “New Jersey: The Beach, the Boss, the Best,” and “New Jersey is the place for me.” OK, for all you lawyers out there, how about this one from your Daily Briefing editor? “New Jersey — Its Lore and Law.” 10-28-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, OCTOBER 28, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, OCTOBER 28, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, OCTOBER 31, 2005.


APPROVED FOR PUBLICATION
MEGAN’S LAW
STATE v. LEAHY
Appellate Division, A-5294-03T4, approved for publication October 28, 2005. (9 pages). Facts-on-Call Order No. 92709

In a prosecution for failure to notify law enforcement authorities of a change of address pursuant to Megan’s Law, the State did not have to prove that the defendant failed to provide the required notice to both the municipality in which he formerly had lived and the municipality to which he had moved.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
HEHER v. SMITH, STRATTON, WISE, HEHER & BRENNAN
Appellate Division, A-2557-03T1, October 28, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18737

Chancery Division order that gave the plaintiff former partner a judgment against the defendant law firm for a “stated benefit” of $100,471 plus simple interest and that referred the issue of the plaintiff’s entitlement to a “supplemental benefit” to arbitration, all in accordance with the partnership agreement, affirmed; in his appeal to the New Jersey Supreme Court, the plaintiff had argued that he was entitled to the “stated benefit” and simple prejudgment interest under Rule 4:42-11(a), and the Supreme Court agreed; as a result of his position in the Supreme Court, the plaintiff was judicially estopped from arguing that the Chancery Division had erred by failing to award him interest at the prime rate compounded annually and by awarding him simple interest under Rule 4:42-11(a) instead; because a trial court must follow the mandate of an appellate court on remand, (1) the Chancery Division was barred from ordering any interest other than that permitted by Rule 4:42-11(a) and (2) there was no basis to reverse the order regarding arbitration.

SANCTIONS
COSTANZA BUILDERS OF NEW JERSEY, INC. v. WATERFRONT HOMES, LLC
Appellate Division, A-4426-03T2, October 28, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18739

Order setting aside a default judgment that was entered for the plaintiff general contractor against the defendant property owner and awarding attorney’s fees to the defendant mortgagee as a sanction against the contractor affirmed as to the grant of sanctions but reversed and remanded as to the amount of the attorney’s fees; the contractor sought to enforce its construction lien on the property when the owner failed to pay the contractor; the contractor obtained the default judgment and a writ of execution without notice to the mortgagee; although the Court Rules do not require notice of a default to be sent to a non-defaulting co-defendant, the trial court (1) correctly found that the contractor intentionally failed to notify the mortgagee of the default and that the mortgagee was entitled to copies of the contractor’s Law Division filings and (2) correctly held that the mortgagee was entitled to attorney’s fees; however, remand was necessary because the trial court’s calculation of the attorney’s fees should not have considered the contractor’s wrongful conduct.

VERBAL THRESHOLD
YOUNG HEE LEE v. CINQUINA
Appellate Division, A-2616-04T1, October 28, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18735

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court had determined that the plaintiff failed to satisfy both prongs of the Oswin v. Shaw test; as to the subjective prong, the arguments on appeal were moot in light of the elimination of that prong by DiProspero v. Penn; as to the objective prong, the plaintiff provided sufficient credible objective medical evidence of permanent injuries that were caused by her accident; as to the judge’s role in the summary judgment motion, he incorrectly found this case similar to Sherry v. Buonansonti, and he impermissibly conducted fact-finding by analyzing the plaintiff’s MRI and EMG studies in a way that he perceived would “discredit” the opinions of the plaintiff’s medical experts.

CIVIL PROCEDURE
BONAFIELD v. KELLY
Appellate Division, A-3312-04T1, October 28, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18736

Denial of the plaintiff’s motion to restore his automobile negligence complaint to the trial calendar affirmed; the plaintiff was an attorney and had filed his complaint pro se; on the day that the case was listed for trial, November 12, 2002, the trial judge allowed the plaintiff to leave the courthouse and travel to his law office to obtain his file before the trial began, and the complaint was dismissed after the plaintiff did not return; two days later, the plaintiff requested an adjournment of at least eight weeks because he had been injured in another automobile accident while he was retrieving his file; nothing further appeared in the record until the plaintiff’s February 4, 2005 motion to restore, which was supported by his certification that he had obtained an “indefinite adjournment” and that he was not notified of the dismissal; based on a memorandum from the trial judge, however, the motion judge determined that an indefinite adjournment had not been granted; the motion judge did not abuse his discretion because the motion to restore was not supported by medical evidence that documented the plaintiff’s status between the dismissal and the filing of the motion to restore and because the plaintiff was responsible for monitoring the case and for moving for restoration before more than two years elapsed.

LAND USE
AHOLD CORP. v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF SPRINGFIELD
Appellate Division, A-3965-03T1, A-4021-03T1, and A-4038-03T1, October 28, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18738

Order (1) that invalidated the defendant Board of Adjustment’s denial of the plaintiffs’ application for site plan approval for a supermarket and (2) that approved the site plan with the 25 conditions set forth in the Board’s resolution and with an additional condition imposed by the trial court affirmed in part, reversed in part, and remanded; the Board had rejected the site plan based on the design of the truck unloading area, but its decision could not stand because it did not identify any ordinance provisions that the site plan violated; even if the Board applied the ordinance that requires “off-street truck loading spaces” to provide “safe, adequate, and convenient ingress and egress,” the trial court correctly determined that the Board’s decision was “unreasonable”; however, the trial court exceeded its authority by imposing the additional condition; because the Appellate Division could not determine whether the Board affirmatively voted in favor of the 25 conditions, remand was required for the Board to determine the reasonable conditions to be imposed on the site plan approval based on the record as it existed.

UNEMPLOYMENT COMPENSATION
PATEL v. BOARD OF REVIEW
Appellate Division, A-5933-03T2, October 27, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18730

Final determination of the Board of Review that the petitioner was not eligible for Temporary Extended Unemployment Compensation for displaced airline and related workers due to her lack of “qualifying employment” under the federal Temporary Extended Unemployment Act of 2002 affirmed; the petitioner was laid off from her position as a “pre-board airline screener” at Newark Airport when the federal Transportation Security Administration took responsibility for airport security; the Board of Review properly deferred to the U.S. Department of Labor, which (1) has interpreted separation from “qualifying employment” narrowly to include separations due to a reduction in service by an air carrier or the closure of an airport but not due to the TSA’s assumption of responsibility for airport security and (2) has “squarely addressed” the petitioner’s “specific situation” and determined that the benefits that she sought are not available.

DISCOVERY
REPA v. THOMPSON
Law Division, Atlantic and Cape May Counties, ATL-L-194-04, return date October 7, 2005, released October 12, 2005, not approved for publication. By Higbee, P.J. (4 pages). Facts-on-Call Order No. 18731

The defendants’ motion to bar the report and testimony of the plaintiffs’ vocational evaluation expert granted; the defendants argued that the report was submitted after the end of the discovery period and after the subsequent arbitration and that the report was the first mention of the expert’s identity; the plaintiffs claimed that there were “exceptional circumstances” for allowing the expert’s report and testimony; the plaintiffs failed to show “exceptional circumstances” under Rule 4:24-1 for an extension of the discovery period (1) because their only explanation for not providing the report on time was the expert’s inability to finish it before the arbitration date, (2) because they did not explain whether they had tried to obtain the report earlier, and (3) because they did not explain their failure to request an extension of time before the discovery period ended.

DISCOVERY
NGO v. ALLSTATE
Law Division, Atlantic and Cape May Counties, ATL-L-3974-04, return date October 7, 2005, released October 12, 2005, not approved for publication. By Higbee, P.J. (2 pages). Facts-on-Call Order No. 18732

The defendant insurer’s motion to extend the discovery period by 60 days denied; the discovery period ended on September 15, 2005, and the insurer’s motion, which was filed on September 13, 2005, was returnable on October 7, 2005; the insurer sought additional time to obtain and review medical records; the insurer asserted that it was still trying to obtain the medical records from health care providers named by the plaintiffs in their answers to interrogatories but that many of the named physicians claimed that the plaintiffs were not their patients; the insurer did not show “exceptional circumstances” for extending the discovery period under Rule 4:24-1(c) because it did not explain why it failed to request the extension before the discovery period ended; the parties may exchange discovery, but they must agree on the terms to do so themselves.


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