NEW JERSEY LAWYER

DAILY BRIEFING      10/07/2005


News Briefs

MERCER COUNTY ASSISTANT PROSECUTORS JOINING UNION
Mercer County’s assistant prosecutors are unionizing to bargain for better salaries. Ninety percent of the county’s assistant prosecutors have signed letters of intent to join or already have joined the Communication Workers of America, says Assistant Prosecutor Michelle S. Gasparian. Assistant prosecutors in Camden, Gloucester, Union and Middlesex counties have collective bargaining units, which, unlike Mercer’s, are not affiliated with a national union. Mercer County Prosecutor Joseph L. Bocchini, who’s not in the union, said he supports the initiative. 10-6-05

DEADLINE NEARS FOR STATE BAR CANDIDATES FOR KEY POSITIONS
Oct. 19 is the deadline for those seeking the support of the nominating committee of the New Jersey State Bar Association for key posts within the state’s largest lawyer organization. These include president-elect, first and second vice presidents, treasurer and secretary. The Bar Association’s nominating committee also seeks applicants for three ABA House of Delegates seats, one Young Lawyers Division trusteeship, three section/committee trustee positions, two nominating committee members, two at-large trustee seats and county trustee seats for Bergen, Burlington, Cumberland, Essex, Gloucester, Hudson, Mercer, Morris, Passaic, Salem and Warren counties. Candidates should send a letter of intent, including their e-mail address, to Ellen O’Connell, Nominating Committee chairwoman, New Jersey State Bar Association, One Constitution Square, New Brunswick, N.J. 08901. 10-6-05

CHIEF JUSTICE’S FIRST ACTION HAS NEW JERSEY FLAVOR
U.S. Chief Justice John G. Roberts wasted no time in using his new position to establish a New Jersey connection. His first official act upon taking command of the nation’s highest court was to admit new lawyers to practice before the court, and among those on hand for admission were eight alumni of Newark’s Seton Hall University School of Law. Those attorneys now sharing that bond with Roberts are John N. Lemieux, Demetra A. Maurice, Francis R.X. Lyons, Thomas G. Kay, Margaret P. Miller, Gregory W. Fortsch, Susan J. Ellis and Robert J. Brass. 10-6-05

LOBBYING GROUP HAS COMBINED VALUE OF $1 TRILLION
How’s this for a lobbying force? Business leaders joining forces to lobby governments worldwide to fight international piracy and counterfeiting come from companies with a combined value of $1 trillion and more than 1 million employees. Steven Ballmer, chief executive officer of Microsoft, a founding member, said the software industry alone loses $32 billion a year to piracy and that counterfeits account for about 10 percent of all products in the pharmaceutical industry, which the group also represents. Other prominent members include NBC International, Apple Computer and Vivendi International.10-6-05

DEAD GOOSE EXTRACTS REVENGE ON HUNTER
In some ways, it may be safer to hunt bear than geese, a Swedish hunter has learned the hard way. Ulf Ilback returned to work this week after recovering from being knocked out by a goose that landed on his head after his son shot it dead. “It wanted to extract its revenge. If it had gotten a better hit, it would have broken my neck,” Ilback said of the fowl, which plummeted 66 feet. He spent two days in bed with severe headaches. 10-6-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, OCTOBER 6, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, OCTOBER 6, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, OCTOBER 7, 2005.


APPROVED FOR PUBLICATION
INSURANCE
PRINCETON INSURANCE CO. v. QURESHI
Appellate Division, A-6382-03T5, approved for publication October 6, 2005. (16 pages). Facts-on-Call Order No. 92684

The principles of fidelity to the interest of an insured that were set forth in Rova Farms Resort, Inc. v. Investors Ins. Co. of Am. apply when an insurer provides coverage to a physician and his professional corporations under a single policy with separate limits for each insured. In a medical malpractice action in which an excess verdict is virtually certain and in which the plaintiff refuses to settle with the defendant physician, the insurer commits an act of bad faith when it refuses to accept a settlement demand for the policy limits that apply to the physician’s vicariously liable corporation and insists on linking the settlement of the claims against the corporation with the settlement of the claims against the physician. In those circumstances, the insurer is liable for the amount of the excess verdict.

CDS OFFENSES
STATE v. BOSTON
Appellate Division, A-5746-03T4, approved for publication October 6, 2005. (13 pages). Facts-on-Call Order No. 92685

The CDS-related convictions were reversed based on State v. Baskerville due to ultimate-issue flaws in the testimony of the State’s expert. State v. Summers did not apply.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
TANG v. GALUCCI
Appellate Division, A-5217-03T5, October 6, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18624

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 determined that the plaintiff had not presented sufficient evidence that his injuries from the accident had a serious impact on his life; the trial court’s decision was reversed based on the New Jersey Supreme Court’s recent decision in DiProspero v. Penn, which held that AICRA does not require a plaintiff to demonstrate a serious impact on his life to survive summary judgment; the defendants were barred from raising the issue of whether the plaintiff had supplied the comparative analysis required by Polk v. Daconceicao because they had not appealed from the trial court’s determination that the plaintiff had satisfied the first prong of the verbal threshold.

DOMESTIC VIOLENCE
LITTON v. LITTON
Appellate Division, A-2054-04T2, October 6, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18627

Order dismissing the plaintiff wife’s domestic violence complaint against the defendant husband affirmed; the wife’s complaint alleged that, on the date in question, her husband grabbed her by the arms and threw her into a wall, that he kept her from leaving the house, and that he harassed and verbally abused her; the Family Part had concluded that, although the husband had acted inappropriately, his isolated actions on the date in question did not endanger the wife’s life, health, or well-being and did not pose a danger of domestic violence; the Family Part’s findings of fact and conclusions of law were supported by the evidence and did not offend the interests of justice.

REAL PROPERTY
MORI v. HARTZ MOUNTAIN INDUSTRIES, INC.
Appellate Division, A-5783-03T5, October 6, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18625

Summary judgment for the defendant landowner affirmed in an action by the plaintiff neighbor seeking a declaration that he was entitled to connect to roads on the landowner’s developed property and that he did not have to reimburse the landowner for some of the costs incurred in the past for the construction of the roads; the neighbor owned about 136 acres of undeveloped land, and he filed the action after signing a contract with a developer; the trial court properly declined to grant declaratory relief because the neighbor’s land was subject to the jurisdiction of the New Jersey Meadowlands Commission and because, even if the trial court had granted the declaratory judgment that the neighbor sought, he still would have had to obtain approval for his specific plans and connections from the Commission; the neighbor could not invoke the doctrine of easement by necessity because his property had more than 700 feet of frontage on a public road and therefore could not be considered landlocked.

CIVIL PROCEDURE
STEIN v. GILMARTIN
Law Division, Hunterdon County, HNT-L-449-04 and HNT-L-468-04, September 20, 2005, released September 27, 2005, not approved for publication. By Buchsbaum, J. (4 pages). Facts-on-Call Order No. 18623

Shareholder derivative actions based on representations about “the safety of Vioxx” and on the failure to inform the public about the risks associated with Vioxx transferred to Atlantic County for resolution by the judge who was designated by the New Jersey Supreme Court to hear cases involving Vioxx; the Supreme Court’s mass tort order of May 20, 2003 and the June 6, 2003 Notice to the Bar that described that order “clearly” supported the transfers; the mass tort order provided that “all future complaints seeking damages or other relief arising out of the manufacture, sale, distribution, and/or use of the drug Vioxx” must be transferred to Atlantic County; the mass tort order was not limited to products liability actions, and its language “certainly” was broad enough to include shareholder derivative actions that arose from the use, sale, and distribution of Vioxx, which the actions at issue “clearly” did.

EMPLOYMENT LAW
GACINA v. STATE OF NEW JERSEY
Law Division, Mercer County, MER-L-1427-05, September 26, 2005, not approved for publication. By Jacobson, J. (23 pages). Facts-on-Call Order No. 18585

Motion to dismiss for failure to state a claim for relief by the defendant employees of the Office of the Attorney General and the Division of State Police denied in all respects in the plaintiff State Trooper’s action alleging violations of the Conscientious Employee Protection Act, hostile work environment, and the tort of outrage, among other things; the plaintiff claimed that the State Police engaged in “de-policing” by curtailing law enforcement activities to avoid allegations of racial profiling and that the defendants retaliated against him for engaging in legitimate law enforcement activities and for complaining about the “de-policing”; although many of the plaintiff’s allegations “barely” satisfied the liberal pleading requirements due to a paucity of specific facts, those omissions could be cured during discovery and were not sufficient to require dismissal; the defendants’ motion to dismiss based on the CEPA one-year statute of limitations also was denied.

REAL PROPERTY
CORTLAND ASSOCIATES, LP v. CORTLAND NEIGHBORHOOD CONDOMINIUM ASSOCIATION
Chancery Division, Somerset, Hunterdon, and Warren Counties, SOM-C-12003-04, return date September 23, 2005, not approved for publication. By Williams, P.J. (20 pages). Facts-on-Call Order No. 18621

In a dispute arising from mold damage to the plaintiff’s condominium complex that was allegedly caused by the defendant condominium association’s failure to replace leaky roofs, (1) motion for partial summary judgment by the plaintiff granted as to remediation of the common elements but denied without prejudice as to remediation of the interiors of individual units and transferred to the Law Division for further proceedings and (2) the association’s cross-motion to bar the testimony of the plaintiff’s mold expert under Rule 4:24-1(c) denied; as to the plaintiff’s motion, the association was required to maintain and sanitize the common elements under N.J.S.A. 46:8B-14(a), regardless of whether the leaks caused the mold; the plaintiff’s remaining claims were for money damages and therefore were transferred to the Law Division; section 46:8B-14(a) does not apply to interiors, and it was inappropriate under Crowe v. DeGioia to grant injunctive relief for remediation of the interiors because the plaintiff had not established that the mold was caused by the association’s negligence or that the plaintiff would suffer irreparable harm if a preliminary injunction was denied; as to the cross-motion, there was good cause to admit the expert’s testimony, and the association was not prejudiced by the plaintiff’s retention of him.

SETTLEMENTS
ZELANO v. ZELANO
Chancery Division, Somerset County, SOM-C-12038-04, return date September 23, 2005, not approved for publication. By Williams, P.J. (9 pages). Facts-on-Call Order No. 18622

Motions by the defendant co-owners of two parcels of property to enforce a settlement agreement and by the plaintiff co-owners to enforce another settlement agreement in a partition action granted; the first agreement required the defendant co-owners to purchase an estate’s interest in the parcels, and the second agreement required them to purchase the plaintiffs’ interest in the parcels; the estate denied that the first agreement existed, and the defendant co-owners canceled their closing with the plaintiffs after the defendant executor of the estate did not transfer the estate’s interests in the parcels; the first settlement agreement was valid because the attorney who entered into it with the defendant co-owners was representing the estate at the time and because, even though the agreement was not fully memorialized by a sales contract, a letter by the attorney satisfied the Statute of Frauds; because the estate was required to abide by the terms of the first agreement, the defendant co-owners should close with the plaintiffs at the same time they close with the estate.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
C.R. v. BRIDGEWATER-RARITAN REGIONAL BOARD OF EDUCATION
OAL Docket No. EDS 10150-04, Agency Docket No. 2005 9393, Final Agency Decision: August 30, 2005, released for publication September 29, 2005. By Futey, ALJ. (42 pages).

The administrative law judge ordered the respondent Board of Education (1) to provide transportation for the petitioner father’s son to the homes of the son’s divorced parents for as long as the son’s visual disability was manifest, (2) to conduct a functional assessment in both parents’ homes, (3) to provide a home aide if needed, (4) to provide guidance services, and (5) to “constantly” monitor the son’s success and make “appropriate and immediate” adjustments to facilitate his education. The son was legally blind and became eligible for special education and related services in October 2001. The parents shared custody of the son and lived about 2 miles apart within the Board’s district. Although the son had received “dual busing” during sixth grade, the Board discontinued that service in September 2004 based on the lack of a provision for dual busing in the son’s individualized education program and on its policy that eliminated dual busing for all students. The ALJ concluded that the Board did not provide a free appropriate public education to the son because it failed to provide dual busing. Among other things, the ALJ determined that the Board’s failure to observe the son in the father’s home to assess the effect of the lack of dual busing was a “major failure,” that busing was a related service that should have been included in all of the son’s IEPs, and that the Board had committed “numerous procedural violations.”

SPECIAL EDUCATION
D.L. v. SPRINGFIELD TOWNSHIP BOARD OF EDUCATION
OAL Docket No. EDS 5979-2005N, Agency Docket No. 2005-10008, Final Agency Decision: September 16, 2005, released for publication September 29, 2005. By Weiss, ALJ. (11 pages).

The administrative law judge granted the respondent Board of Education’s motion for summary decision on the petitioner parents’ claims for reimbursement of expenses arising from their unilateral provision of services to their son. The son was born in December 2001, the New Jersey Early Intervention Services Program began an individualized family service plan in May 2004, and the son was diagnosed with autism spectrum disorder in July 2004. A few days before the son’s third birthday, the Board’s child study team proposed an initial individualized education program to place the son in an in-district preschool disabled class. However, that IEP was not implemented because the parents did not consent, and the parents sought reimbursement for the expenses they incurred for services during the 2004-2005 school year and the summer of 2005. Based on the recent decision by another ALJ in M.S. v. Princeton Regional Board of Educ., the ALJ in this case concluded that he had no authority to order the Board to reimburse the parents for their provision of services to the son before he entered the Board’s school system because he had not received “special education or related services” within the meaning of 20 U.S.C. §1412(a)(10)(C) and N.J.A.C. 6A:14-2.10.


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