NEW JERSEY LAWYER

DAILY BRIEFING      11/14/2005


News Briefs

KEY ASSEMBLYMAN TO PUSH LAME DUCKS FOR JUDICIAL PAY INCREASE
Lame-duck sessions of the legislature are notorious as times when government officials hit the feeding trough. This year’s session could very well be the judges’ best opportunity for getting a pay increase approved for the first time in years. Assembly Deputy Majority Leader Neil M. Cohen (D-Union) said he’ll be pushing his bill providing for judicial pay raises. Cohen is proposing a 5 percent increase for 2006 followed by another 5 percent increase for 2007. That would mean $155,453 in 2007 for a Superior Court judge, compared to the current $141,000 salary. Judicial raises were last approved in 1999, with the increases spread out several years. Cohen called the proposed raises “far from extraordinary” and fiscally responsible. 11-11-05

CORZINE GETS TWO HIGH COURT SPOTS TO FILL AND ONE DILEMMA
Gov.-elect Jon S. Corzine, a Democrat, has pledged to limit the number of Democrats on the New Jersey Supreme Court to four. Chief Justice Deborah T. Poritz, who reaches the mandatory retirement age of 70 next autumn, is a Republican. Does that mean Corzine will have to name a Republican as her replacement? Not if he names one of the four current justices who are Democrats. He could name Justice James R. Zazzali, for example. He would reach 70 a year later and then Corzine could name his own Democrat. Or he could choose Justice John E. Wallace Jr., who would become the first black chief justice. For full details, see the Nov. 14 New Jersey Lawyer. 11-11-05

REMEMBER TYPEWRITERS?
Maybe it’s not time to ditch the old Underwood just yet. There’s probably a market for it in Missouri. When Johnson County’s small-claims court required that complaint forms be completed on a typewriter, claimants complained loudly that they didn’t have one. Too bad, the clerks said, referring people to a local library that had one. Just one. Then, if there was a mistake on the form, they had to return and do the whole form over. One claimant gave up, saying it wasn’t worth the trouble. Court officials said the issue was legibility: if the form couldn’t be read, it couldn’t be filed. After the local media caught up to the issue, the judge finally relented. Clerks can now accept handwritten forms as long as they’re legible — and in triplicate. 11-11-05

ILLINOIS JURY AWARDS $4.7 MILLION IN EMINENT DOMAIN CASE
A jury has awarded $4.7 million to an Illinois man whose house was razed and land taken by the state for a future highway expansion. State appraisers figured Rick Jones was entitled to between $1 million and $1.3 million for the loss of his house, the 27.5 acres the state seized and the reduced value of the approximately 160 acres of his remaining property. Jones, who had sought up to $6.2 million, argued the state underestimated the value of future development. 11-11-05

FBI LIMITED IN TRACKING CELL-PHONE USERS’ LOCATIONS
Two federal judges have ruled the FBI may not track the location of cell-phone users without showing evidence a crime occurred or is in progress. In cases in Texas and New York, the judges denied requests for court orders that would have forced wireless carriers to continuously monitor the location of a suspect’s cell phone as part of an ongoing investigation. Both U.S. Magistrate Judge James Orenstein of the Eastern District of New York and U.S. Magistrate Judge Stephen Wm. Smith of the Southern District of Texas rejected the Justice Department’s arguments, saying there had to be probable cause of a crime. 11-11-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, NOVEMBER 11, 2005
NEW JERSEY COURTS WERE CLOSED ON FRIDAY, NOVEMBER 11, 2005.

NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, NOVEMBER 11, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, NOVEMBER 14, 2005.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON FRIDAY, NOVEMBER 11, 2005.

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON FRIDAY, NOVEMBER 11, 2005.

THE FOLLOWING OPINIONS NOT APPROVED FOR PUBLICATION HAVE BEEN RELEASED:


MEDICAL MALPRACTICE
FINLEY v. BAROT
Appellate Division, A-6108-03T5, November 10, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18799

Judgment of no cause of action for the defendant doctor and her employer in a medical malpractice action arising from unsuccessful breast reconstruction surgery reversed and remanded for a new trial; question 3 and its four subparts on the jury verdict sheet were designed to elicit findings about the four elements of the plaintiff’s lack of informed consent claim; the trial court erred by entering judgment for the defendants based only on the jury’s “yes” answer to question 3(c), which asked whether a reasonable person under the circumstances of this case would have chosen to undergo the surgery if she had been informed of the risks; the question and the instructions that followed it were “highly misleading” and could have caused a misunderstanding; because the jury proceeded to answer the remaining questions and award damages to the plaintiff, it seemed “more probable” that the jury misconstrued question 3(c) and believed that its answer constituted a finding for the plaintiff.

LANDLORD AND TENANT
ALDRICH NINE ASSOCIATES v. FOOT LOCKER SPECIALTY, INC.
Appellate Division, A-412-03T1, November 10, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18803

Judgment for the plaintiff landlord in an action to recover rent due under a commercial lease from September 2001 to January 2006 affirmed; in 1990, the defendant tenant and the landlord’s predecessor in interest entered into a lease that would end in January 2001 and that allowed the tenant to renew the lease for five years; in 1995, the tenant assigned the lease to its subsidiary, which later was sold to a third party and which later exercised the renewal option and agreed to amend some of the lease terms; in September 2001, the subsidiary and the third party filed for bankruptcy, and the subsidiary vacated the premises and stopped paying rent; as to liability, the trial court correctly granted summary judgment for the landlord because there was no basis to conclude that there had been a novation or a material alteration that significantly modified the tenant’s exposure under the initial lease; as to damages, which had proceeded to trial, the trial court did not err by allowing the landlord to prove its case through evidence in summary form, such as spreadsheets and charts.

PARENT AND CHILD
SASSO v. DUBINSKI
Appellate Division, A-3158-04T2, November 10, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18802

Post-divorce-judgment order that granted the defendant mother’s motion for reconsideration of the reduction of the plaintiff father’s child support obligation from $133 per week to $0, that required the father to pay arrears, and that implicitly denied the father’s request for a dismissal of the arrears affirmed; the reduction was based on the father’s claim that his only income was Social Security income benefits, which cannot be considered in the calculation of child support; however, it “became clear” on reconsideration that the father actually was receiving Social Security disability benefits, which may be considered in the calculation of child support, and the father’s obligation was properly recalculated at $75 per week; as to the arrears, the trial court lacked the authority to vacate them pursuant to N.J.S.A. 2A:17-56.23a.

JURISDICTION
VELEZ v. BETANCUR
Appellate Division, A-3588-04T2, November 10, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18804

Special Civil Part interlocutory order that denied the motion of the defendant tenant, who was the First Secretary at the Permanent Mission of Colombia to the United Nations, to dismiss the plaintiff landlord’s eviction complaint reversed and remanded with instructions to dismiss the complaint subject to the U.S. Department of State’s certification of the tenant’s diplomatic status; the tenant had been granted leave to appeal on “the threshold issue of jurisdiction”; the Special Civil Part lacked subject-matter jurisdiction pursuant to 28 U.S.C. §1351, which grants the U.S. District Courts original jurisdiction over all actions against a mission’s diplomatic staff; however, because the tenant did not serve as an ambassador, public minister, consul, or vice-consul, 28 U.S.C. §1251 did not apply to limit jurisdiction over this action to the U.S. Supreme Court.

MOTOR VEHICLES
STATE v. HAWLEY
Appellate Division, A-2299-04T3, November 10, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18801

Conviction of careless driving after a trial de novo in the Law Division affirmed; the defendant was backing up his pickup truck at the municipal waste disposal facility when his truck struck and killed a woman who was emptying her trash into a garbage truck; the defendant claimed that his accelerator stuck, but the Municipal Court did not find the defendant or his experts credible, and it credited the testimony of the State’s experts; the Law Division agreed with the Municipal Court’s findings as to credibility and concluded that the accident was caused by the defendant’s use of the accelerator instead of the brake; the record, including eyewitness and expert testimony, supported the Law Division’s conclusions.

CORPORATIONS
LANZA v. NEW GLOBAL COMMUNICATIONS, INC.
Chancery Division, Bergen County, BER-C-327-05, October 21, 2005, released October 25, 2005, not approved for publication. By Doyne, J. (11 pages). Facts-on-Call Order No. 18797

On the return of an order to show cause in an action seeking dissolution of the defendant corporation and alleging a breach of fiduciary duty by the defendant president, the restraints that were imposed on the defendants by a consent order pending the return date of the order to show cause were continued, but the plaintiff shareholders’ request for preliminary relief in the order to show cause was denied in all other respects; the restraints, which prohibited the destruction of corporate records and directed the president to turn over the records to the plaintiffs, had been complied with, and they were continued to “adequately assuage” the plaintiffs’ ongoing concerns about the records; as to the other preliminary relief sought in the order to show cause, (1) the plaintiffs were entitled to a special meeting of the shareholders under N.J.S.A. 14A:5-3 if they persisted in their request, although the court was “dubious” that the meeting would accomplish anything, and (2) the president need not be removed because his decisions were subject to the business judgment rule and because there was no evidence that he was engaging in fraud, self-dealing, or unconscionable conduct.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
RAMSEY BOARD OF EDUCATION v. I.A.
OAL Docket No. EDS 9631-05, Agency Docket No. 2006 10423, Final Agency Decision: October 11, 2005, released for publication October 31, 2005. By McKeown, ALJ (temporarily assigned). (7 pages).

The administrative law judge granted the petitioner Board of Education’s request for an order authorizing the evaluation of the respondent mother’s son to determine whether he required special education and related services. The Board relied entirely on the testimony of the son’s fifth grade teacher, who stated that the son had “significant difficulties” in reading comprehension and language arts during the 2004-2005 school year. The mother was “adamant” that the son did not need special education and that there was no reason for the teacher to believe that her son should be evaluated. The ALJ observed that the son’s academic problems appeared minor compared to his successes, but he reasoned that it would be better to understand his difficulties in language arts while he was young so that those difficulties could be corrected. The ALJ further observed that the Board had an obligation to determine whether the son required special education, even if the mother disagreed, and he concluded that the Board had presented sufficient proof for the son to be evaluated by its child study team.

SPECIAL EDUCATION
D.D. v. MONTCLAIR BOARD OF EDUCATION
OAL Docket No. EDS 9295-05, Agency Docket No. 2006 10296, Final Agency Decision: October 17, 2005, released for publication October 31, 2005. By McKeown, ALJ (temporarily assigned). (15 pages).

The administrative law judge dismissed the petitioner parents’ requests for reimbursement for their unilateral placement of their 13-year-old son at the Craig School and for a due process hearing to challenge the program that the respondent Board of Education provided to the son between 1998 and June 2004. On June 18, 2004, the parents memorialized their agreement with the son’s individualized education program for the 2004-2005 school year, but they signed a contract on June 22 to enroll their son at the Craig School. On June 29, the parents informed the respondent Board of Education’s child study team by telephone that they were withdrawing their son from the Board’s district and enrolling him at the Craig School, and they notified the Board on August 20 of their intent to seek reimbursement. As to reimbursement, the ALJ concluded that the parents had not complied with the regulations because they had not notified the Board in writing at least 10 days before they withdrew their son. As to the due process hearing, the ALJ concluded that the parents’ request, which was filed more than one year after their reimbursement request, was untimely under Bernardsville Board of Education v. J.H.

COMMUNITY AFFAIRS
HODGE v. BUREAU OF HOUSING INSPECTION
OAL Docket No. CAF 11212-02, Agency Docket No. BHI-544-02/0709-24546, Initial Decision: September 19, 2005, Final Agency Decision: October 26, 2005, released for publication November 1, 2005. By Gerson, ALJ. (11 pages).

The Acting Commissioner of the Department of Community Affairs adopted as his final decision the initial decision of the administrative law judge with modifications in an action arising from the Bureau of Home Inspection’s imposition of fines on the petitioner owners of a four-unit multiple dwelling for failure to correct violations of the Housing Code after being directed to correct them. One owner testified that a repair to a windowsill was the only repair that was not completed. The ALJ found the owner to be credible, dismissed the violations for broken glass and for an inoperable smoke detector, and reduced the fines for the remaining violations from a total of $1,000 to $150. The Acting Commissioner (1) reversed the ALJ’s findings as to the broken glass and smoke detector violations because the ALJ had not given a sufficient reason for doubting the veracity of the Bureau’s reinspection report, (2) rejected the ALJ’s “implication” about the specificity with which a housing inspector must testify and emphasized that a housing inspector’s testimony that is based on a signed and dated reinspection report must be given “due weight” and the presumption of validity, and (3) upheld the penalties assessed by the Bureau because the violations had not been corrected, even if they could have been corrected easily, and because the penalties fell within the statutory range.

COMMUNITY AFFAIRS
DAVLOUROS v. ERBE BUILDERS, INC.
OAL Docket No. CAF 6358-04, Agency Docket No. BHP-434-04-5/W#1520004, Initial Decision: September 2, 2005, Final Agency Decision: October 26, 2005, released for publication November 1, 2005. By Martone, ALJ. (12 pages).

The Acting Commissioner of the Department of Community Affairs adopted as his final decision the initial decision of the administrative law judge that dismissed the petitioner homeowner’s appeal from a decision of the Bureau of Homeowner Protection under the New Home Warranty Program (1) that required the respondent Builder to correct eight of 67 claimed defects, (2) that denied 43 claimed defects under N.J.A.C. 5:25-3.4(a)1 because they were included on a list of defects from a pre-closing walk-through that was covered by a $10,000 escrow account held by the homeowner’s attorney, and (3) that found no deficiencies as to the remaining claimed defects. The homeowner did not challenge the claimed defects that were found not deficient, and the eight defects to be repaired were not an issue on appeal. The homeowner testified that, of the 43 claimed defects that were denied under N.J.A.C. 5:25-3.4(a)1, the $10,000 escrow covered only the first 13 and that there was no intent to include the remainder. However, the ALJ found that the homeowner’s testimony contradicted the documentary evidence, and he affirmed the Bureau’s decision.

COMMUNITY AFFAIRS
DEPARTMENT OF COMMUNITY AFFAIRS, BUREAU OF CODE SERVICES v. AA MABROUCK ENTERTAINMENT, INC.
OAL Docket No. CAF 577-05, Agency Docket No. BCS-489-04/CAR-35-04, Initial Decision: October 4, 2005, Final Agency Decision: October 27, 2005, released for publication November 1, 2005. By Martone, ALJ. (8 pages).

The Acting Commissioner of the Department of Community Affairs adopted as his final decision the initial decision of the administrative law judge with modifications in an action alleging that the respondent inflatable ride operator had committed 25 regulatory violations. After an accident at a religious facility in New Jersey, the Bureau of Code Services learned that the respondent was operating rides illegally in New Jersey, and it sought a $1,000 fine for each of the 25 alleged infractions. On the Bureau’s motion for summary decision, the respondent filed no response, and the ALJ found that the respondent had operated rides without supplying the notice required by N.J.A.C. 5:14A-9.2, without the valid annual ride permit required by N.J.A.C. 5:14A-9.6, and without obeying the procedures for operation set forth in N.J.A.C. 5:14A-13.15. The ALJ further found that $1,000 per infraction was a reasonable fine under N.J.S.A. 5:3-54, but he assessed a fine of $19,000 because the documentary evidence supported only 19 of the 25 alleged infractions. The Acting Commissioner found that the ALJ had “miscounted” the number of violations and that the correct fine was $25,000.


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