NEW JERSEY LAWYER

DAILY BRIEFING      11/16/2005


News Briefs

AG CONVENES MEETING ON ALLEGED BIAS TOWARD HISPANICS
Attorney General Peter C. Harvey is taking seriously one Plainfield woman’s allegations that the city’s police have ignored or downplayed crimes against Hispanics. While Police Chief Edward Santiago says the claims of activist Carmen Salavarrieta are inflated, Harvey nevertheless met with Criminal Justice Division Director Vaughn L. McKoy and other officials this week. According to Paul Loriquet, a spokesman for the Attorney General’s Office, a community meeting will be held in Plainfield within the month to address what Loriquet described as a pattern of robberies. The chief said the meeting would give interested parties an opportunity to voice concerns while officials will present statistics on incidents, including alleged victimization of Hispanic residents after they cash paychecks. 11-15-05

TOLL BROTHERS APPEALS SUIT DISMISSAL
Building contractor Toll Brothers is appealing the dismissal of a federal suit seeking compensation for profits it alleged to have lost when Readington Township officials declined to allow development of 160 acres. Chief U.S. District Judge Garrett E. Brown Jr. will hear the appeal Dec. 5. Brown had dismissed the case in late October, ruling the builder had no legal standing and hadn’t suffered any actual injury because it only has an option to buy the land. Toll’s attorney, James A. Kozacheck of Flaster/Greenberg in Cherry Hill, is asking Brown to allow the builder to amend its complaint to add Fred Daniels Co., owner of the property, as co-plaintiff. The case stems from the township’s rezoning of the property. Previously, half the land was zoned for office-research and the remainder residential, with three-acre minimum lots. In 2002, the township rezoned it residential-agriculture, with minimum lots of six acres. 11-15-05

NJ TRAFFIC TICKETS WRONGLY ROUTED TO NEBRASKA DRIVERS
It’s bad enough to get a traffic ticket that’s deserved, but for Nebraska drivers who haven’t set foot — or pedal — on the New Jersey Turnpike in 40 years and still received more than 20 erroneous tickets from the turnpike authority, it’s downright annoying. Gene Stava and his wife, Mildred, of Hay Springs, Neb., began receiving the tickets in September. Apparently, a mix-up in license plate numbers has Nebraskans erroneously getting traffic tickets from New Jersey, Pennsylvania and elsewhere. Beverly Neth, director of the Nebraska Department of Motor Vehicles, says that for the past 18 months, about 20 to 30 tickets have been sent each week to her state’s residents for failure to pay tolls and other alleged violations. The problem, she says, is recipients weren’t anywhere near the scene. The mix-up stems from Nebraska’s license plate numbering system, which allows for numerical sequences to be repeated in both commercial and personal vehicles. 11-15-05

HIGHEST COURT WILL HEAR SUIT ON PRISON READING
Pennsylvania inmates who won a 3rd U.S. Circuit Court of Appeals ruling that challenged the prison system’s ban to keep magazines and newspapers out of the hands of disruptive inmates are facing another hurdle. The U.S. Supreme Court has agreed to hear the state’s appeal in Beard v. Banks. While the appeals panel found the ban violated their free-speech rights, Judge Samuel A. Alito Jr. dissented. President Bush’s nominee to the U.S. Supreme Court argued the state should be allowed to withhold the publications, saying the regulations were “temporary, last-resort restrictions.” And, he said, prison officials could encourage inmates to behave well with the promise of allowing reading material. 11-15-05

POLITICIANS’ ART OF TURNING BAD NEWS INTO GOOD
Politicians have a way of putting a happy face on just about anything, even when taxpayers are going to get walloped. Civic leaders in the growing Chicago suburb of Orland Park, Ill., acted as if they were relieved to discover that for an $8.5 million settlement in an injury case, they’ll only have to bill taxpayers less than half that. In 2001, a man sustained permanent injuries in a crash with the town’s bookmobile, and the library board agreed to the settlement even though the board’s insurance covered only $3 million. After dozens of angry residents ripped the board for having insufficient insurance and still settling for $8.5 million, the board — almost cheerfully — announced citizens shouldn’t sweat it. After all, construction costs of a new library were way under budget, and with that savings, taxpayers would be hit up for a mere $3.5 million of the settlement. 11-15-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, NOVEMBER 15, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, NOVEMBER 15, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, NOVEMBER 16, 2005.


APPROVED FOR PUBLICATION
DAMAGES
PREMIER XXI CLAIMS MANAGEMENT v. RIGSTAD
Appellate Division, A-4249-04T5, approved for publication November 15, 2005. (6 pages). Facts-on-Call Order No. 92733

The damages to an automobile may be measured by the difference between its value immediately before and immediately after an accident. Alternatively, the plaintiff may prove the cost of repair plus the difference, if any, between the automobile’s original value and its value after the repair. If the cost of repair is less than the difference in the value of the automobile immediately before and after the accident, the defendant can insist that the cost of repair represents the damages, but only if he also proves that the repair will restore the automobile to its original value. Disapproving of a portion of Model Civil Charge 6.17.

LAND USE
ERETC, L.L.C. v. CITY OF PERTH AMBOY
Appellate Division, A-2035-04T2, approved for publication November 15, 2005. (21 pages). Facts-on-Call Order No. 92734

The City’s decision to designate an area in need of redevelopment was not based on “substantial evidence” as required by the Local Redevelopment and Housing Law because the City relied almost exclusively on a city planner’s report that merely recited the statutory criteria for designating areas in need of redevelopment but that did not tie the statutory criteria to an analysis of the properties in the designated area.

LAND USE
FIRST MONTCLAIR PARTNER, L.P. v. HEROD REDEVELOPMENT I, L.L.C.
Appellate Division, A-6-04T3, approved for publication November 15, 2005. (8 pages). Facts-on-Call Order No. 92735

A project approved by a planning board under the Local Redevelopment and Housing Law that proposed a structure with seven stories above ground and a parking facility below ground did not violate a redevelopment regulation that limits structures to seven stories, even though a local zoning ordinance defines “story” to include an underground parking facility.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
CARROLL v. BUCHANAN
Appellate Division, A-1334-04T2, November 15, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 18816

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 accepted that the plaintiff had satisfied the requirement under Oswin v. Shaw of demonstrating that he had suffered a permanent injury but concluded that he had not satisfied the requirement under Oswin of demonstrating a “substantial impact” on his lifestyle; the defendants’ filing of a letter of nonparticipation in this appeal implicitly conceded that the trial court’s decision could not stand in light of the New Jersey Supreme Court’s recent decision in DiProspero v. Penn, which held that proof of a “substantial impact” is not required under AICRA; based on DiProspero, the Appellate Division was compelled to reverse and remand for trial.

NEGLIGENCE
DeNIGRIS v. DeNIGRIS
Appellate Division, A-6371-03T2, November 15, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18817

Summary judgment for the defendant husband based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed in part but reversed in part, and summary judgment for the defendant police officer based on the verbal threshold provisions of the Tort Claims Act affirmed; the plaintiff was a passenger in a car operated by her husband when it collided with the police car operated by the officer; as to the AICRA claims, (1) following the elimination of the serious impact element by DiProspero v. Penn and Serrano v. Serrano, the plaintiff’s objective medical evidence of a torn rotator cuff and her post-surgery residual pain and “significantly limited” motion was sufficient to survive summary judgment but (2) the trial court correctly determined that she had not met her burden of proof under Polk v. Daconceicao with regard to her pre-existing back condition; as to the TCA claims, the plaintiff failed to present objective medical evidence that was sufficient to establish that her surgically repaired rotator cuff was “a permanent loss of a bodily function.”

PERSONAL INJURY
BRICK v. JOHN
Appellate Division, A-749-04T1, November 15, 2005, not approved for publication. (18 pages). Facts-on-Call Order No. 18819

Summary judgment for the defendant drug manufacturer, the defendant doctor, and the defendant nurse affirmed in a personal injury action arising from the plaintiff’s participation in a clinical study that tested a drug for treating chronic fatigue syndrome; contrary to the plaintiff’s arguments on appeal, (1) the denial of her motion to amend her complaint to assert a negligence claim against the manufacturer was proper because that claim fell within the sphere of the Products Liability Act, (2) the denial of her motion to amend answers to interrogatories with her expert’s supplemental report was proper because, even if the report was correctly submitted as an amendment, it was “fatally deficient” to establish the manufacturer’s liability under theories of either negligence or strict liability, and (3) her assertions that the doctor and the nurse — who were employed by the University of Medicine and Dentistry of New Jersey, Robert Wood Johnson Medical School — were not public employees or had waived their defense of immunity under the Tort Claims Act lacked merit.

TORT CLAIMS ACT
BOBBITT v. NEW JERSEY TRANSIT
Appellate Division, A-2471-04T2, November 15, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18818

Summary judgment for the defendant New Jersey Transit and the defendant City in a personal injury action arising from the plaintiff’s fall on a sidewalk and denial of the plaintiff’s motion for reconsideration affirmed; the trial court granted summary judgment because the plaintiff failed to show that the defendants had actual or constructive notice of the crack in the sidewalk; the only evidence related to the issue of notice was color photographs of the sidewalk; the trial court concluded that the plaintiff had not demonstrated constructive notice because, in the absence of testimony, simply viewing the photographs did not permit a determination as to how long the crack had been there; there was no basis to disagree with the trial court because the Appellate Division could “tell nothing” from the “unclear black and white copies” of the photographs that the plaintiff had provided instead of the originals.

CIVIL ACTIONS
DeSAPIO v. DeSAPIO
Chancery Division, Somerset, Hunterdon, and Warren Counties, HNT-C-14040-05, return date November 3, 2005, released November 9, 2005, not approved for publication. By Williams, P.J. (9 pages). Facts-on-Call Order No. 18815

Order to show cause with preliminary restraints denied in an action alleging that the defendants, who were the plaintiffs’ son and daughter-in-law, had mismanaged the insurance proceeds from a fire at the plaintiffs’ pizzeria and had effectively taken the pizzeria away from the plaintiffs; after the fire, the plaintiffs had accepted the defendants’ help in restoring the premises, dealing with the insurer, and managing financial matters; the defendants claimed that the plaintiffs had sold the pizzeria to them; preliminary restraints could not issue (1) because the plaintiffs’ alleged harm could be redressed by money damages and thus was not irreparable, (2) because the ownership of the pizzeria was “hotly disputed,” (3) because the legal right underlying the plaintiffs’ claim was unsettled due to their failure to establish ownership of the pizzeria, and (4) because granting preliminary relief would possibly cause greater harm to the defendants by eliminating their sole source of income; however, the insurance proceeds should have been distributed to the plaintiffs, and an accounting of the proceeds was to be provided within 14 days.

ELECTIONS
HUNT v. SUPERVISOR OF ELECTIONS OF BERGEN COUNTY
Law Division, Bergen County, L-7371-05, November 7, 2005, not approved for publication. By Escala, P.J. (3 pages). Facts-on-Call Order No. 18814

Determination that the plaintiff was ineligible to vote under N.J.S.A. 19:4-1(8), which denies the right of suffrage to persons who are serving a sentence or who are on parole or probation following a conviction of an indictable offense, upheld; the plaintiff was convicted in October 1997 of second-degree sexual assault of a victim under age 13, and, after serving a five-year prison term, he was sentenced to community supervision for life under Megan’s Law because his conduct exhibited “a pattern of repetitive and compulsive behavior”; as a matter of first impression in New Jersey, the plaintiff was ineligible to vote under §19:4-1(8) even though he was not on parole or probation because, under New Jersey law, community supervision for life is the equivalent of parole.


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