NEW JERSEY LAWYER

DAILY BRIEFING      11/17/2005


News Briefs

ATTORNEY ADVERTISING PANEL RESTRICTS CLIENT-POACHING
Attorneys soliciting prospective clients are required to include a new warning in direct mail and e-mail pitches: “If you are already represented by counsel in this matter, please disregard this advertisement.” The warning must be in the same font size as the rest of the text. The New Jersey Supreme Court’s Committee on Attorney Advertising said its directive, Opinion 35, follows an inquiry and a complaint it received about both direct and e-mail solicitation of prospective clients who already are represented by counsel in a matter. The committee said the inclusion of the new warning “will achieve a fair balance between the free speech interest in sending a solicitation and the individual interest in being free from perceived pressure when receiving such a solicitation. It will also accommodate the expectations of the public that attorneys should not attempt to replace, without invitation, an attorney already representing that individual.” 11-16-05

JUDGE UPHOLDS HIGHLANDS ACT
In the first court decision to deal directly with the constitutionality of the Highlands Protection Act, Superior Court Judge B. Theodore Bozonelis ruled the statute is valid and has “substantial public purposes” that “outweigh the impairment of individual property rights.” In OFP v. State of New Jersey, he rejected a developer’s contentions the 2004 law resulted in an unjust taking of property. The law restricts development on 800,000 acres in the northern and northwestern parts of New Jersey. The Highlands is an environmentally sensitive region spanning parts of 90 municipalities and is the source of clean drinking water for half the state’s residents. The attorney for OFP, a development firm based in Morristown, was Brian J. Mulligan of Trenton; the state was represented by Brian Weeks, a deputy attorney general. (A full text of OFP, Facts-on-Call Order No. 18828, can be ordered from NJL Online or by calling 800-670-3370.) 11-16-05

VICTIMS IN DWI CRASH TO RECEIVE $800,000
Two people injured in a crash caused by a drunken driver, along with the family of a third victim who was fatally injured, will divide an $800,000 settlement. The settlement in Ludlow v. King was against Justin King, who is serving a four-year prison term for vehicular homicide and assault by auto in connection with a July 2001 crash in South Plainfield, and the Italian-American Club in South Plainfield, where King had been drinking. The major portion of the settlement, $445,000, goes to Mary Ludlow of Piscataway, whose sport utility vehicle was struck by King’s pickup truck. She required reconstructive surgery and months of rehabilitation, said her lawyer, Andrew S. Prince of Clark. The estate of Ronald Hurst, a passenger in Ludlow’s vehicle, will receive $300,000. He died of his injuries weeks later. The remaining $55,000 will be paid to King’s wife, Sherry Kurilew, who was injured in the crash. King’s insurance policy will pay $50,000, while the Italian-American Club’s insurance will cover the remainder. King’s attorney, Steven D. Altman of New Brunswick, contended King was not drunk and his truck skidded on debris. Joseph P. Ambrosio of Parlin represented Kurilew. 11-16-05

ELECTION MARGIN WIDENS
Attorney Paula Sollami-Covello emerged on election night as the apparent victor in a vigorously fought race for Mercer County clerk, but the battle is continuing. In the Democrat’s first race for office, Sollami-Covello had the highest number of votes tallied from voting machines and absentee ballots, apparently defeating Republican incumbent Cathy DiCostanzo by a 156-vote margin. After 587 provisional ballots were reviewed this week by the county Board of Elections and Superior Court Judge Bill Mathesius, Sollami-Covello widened her lead to 237. During the campaign, she skewered DiCostanzo on lengthy delays in filing real-estate deeds in the county courthouse and blasted her for a private janitor’s throwing out bags of documents that were delivered to her office during the summer. 11-16-05

WHEN NEW YORK JUDGES ABUSE THEIR AUTHORITY
Two New York judges were admonished this week by the State Commission on Judicial Conduct for abusing their power to hold litigants in contempt. Justice Duane A. Hart of State Supreme Court in Queens was censured — the strongest discipline short of removal — for holding a plaintiff in contempt because the person’s lawyer insisted on putting on the record an encounter between the plaintiff and the judge in the courthouse parking lot. The other judge, Richard S. Lawrence of Nassau County Family Court, was admonished for failing to warn a litigant before holding him contempt and jailing him overnight for sighing loudly in court. 11-16-05



Today's Decision Summaries

To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)

FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, NOVEMBER 16, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, NOVEMBER 16, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, NOVEMBER 17, 2005.


APPROVED FOR PUBLICATION
PARENT AND CHILD
DANIELS v. DANIELS
Appellate Division, A-7123-03T1, approved for publication November 16, 2005. (18 pages). Facts-on-Call Order No. 92736

The Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, may be applied constitutionally to an “intact” family in which both parents oppose visitation. However, to justify the potentially unconstitutional burden on the parents posed by discovery and a trial, a complaint under §9:2-7.1 must set forth clear and specific allegations of concrete harm to the children if visitation is not permitted.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
IMMORDINO v. ROMANO
Appellate Division, A-16-04T5, November 16, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18823

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; the plaintiff injured her right shoulder and her back in an automobile accident; the plaintiff might have injured one of her shoulders in two earlier incidents, but there had been “a complete resolution of symptoms long before the subject accident”; summary judgment was improper (1) because the plaintiff did not have to demonstrate a serious injury in light of Serrano v. Serrano, (2) because the plaintiff’s objective medical evidence established that she had suffered injuries to her right shoulder and back that would not heal to function normally, and (3) because, even if the requirement of a comparative analysis under Polk v. Daconceicao was still viable, no comparative analysis was required in this case.

PERSONAL INJURY
SCHERTL v. EMSAR EQUIPMENT CO.
Appellate Division, A-2347-04T2, November 16, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18826

Summary judgment dismissing the plaintiff emergency medical technician’s products liability and negligence action against the defendant gurney manufacturer and the defendant gurney service company for injuries sustained by the plaintiff when a gurney collapsed affirmed; as to the service company, the trial court had granted summary judgment because there was no evidence of negligence on the part of the company or its contractee; because the plaintiff offered no evidence of negligent inspection or maintenance on the part of the service company or its contractee on appeal, the Appellate Division affirmed; as to the manufacturer, in the absence of direct proof of a defect, summary judgment was appropriate, as it was in Lauder v. Teaneck Ambulance Corps., which affirmed summary judgment for the gurney manufacturer because there was no expert report that established any defect in the gurney’s locking mechanism.

NEGLIGENCE
MODICA v. RUTIGLIANO
Appellate Division, A-6641-03T3, November 16, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18825

Denial of the plaintiff casual employee’s motion for additur or a new trial on the issue of damages after the entry of a final judgment of $289,545.01 in his favor in a negligence action arising from a “severe crush injury” at the defendant employer’s workplace affirmed in part, reversed in part, and remanded; the jury awards for past and future lost wages and for past and future medical bills were supported by the record; however, a new trial was required on the issue of damages for past and future disability, impairment, loss of the enjoyment of life, and pain and suffering because it would be “manifestly unjust” to sustain them (1) where the jury award of $0 for those past damages was “clearly so disproportionate” to the plaintiff’s injuries and his resulting disability that it shocked the judicial conscience and (2) where the jury award of $7,000 for future pain and suffering was “clearly disproportionate” to the medical experts’ projections of pain, suffering, and disability.

DISCOVERY
McGRIFF v. VOLKSWAGEN CORP.
Appellate Division, A-1475-04T3, November 16, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18824

Dismissal with prejudice of the plaintiff car owner’s products liability complaint under Rule 4:23-5(a)(2) for failure to provide discovery and vacation of an order that had reinstated the complaint after an administrative dismissal for lack of prosecution affirmed; although exceptional circumstances need not be demonstrated to defeat a motion to dismiss under Rule 4:23-5(a)(2) when fully responsive discovery has been provided, the plaintiff had to demonstrate exceptional circumstances because the record did not present a bona fide dispute as to his responses to discovery demands; the plaintiff did not demonstrate exceptional circumstances because the record at best established that his attorney had had administrative problems in his office and because, under Rodriguez v. Luciano, an attorney’s administrative problems do not constitute exceptional circumstances for the purpose of defeating a motion to dismiss with prejudice.

CONTRACTS
HERMANNS v. COLLETTI
Appellate Division, A-2961-03T5, November 16, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18827

Special Civil Part judgment awarding the plaintiff $1,828.78, which represented only his expenses, and dismissing his claim for unpaid wages totaling $11,720 affirmed; the plaintiff and the defendant car dealership had entered into an oral agreement, under which the dealership would buy vehicles at auction on the plaintiff’s behalf; the plaintiff would reimburse the dealership, take title to the vehicle, and sell it in his own name; in exchange, the plaintiff would perform certain tasks for the dealership, including driving the dealership’s vehicles to and from the auctions; however, the plaintiff asserted that the arrangement changed to one in which he would receive monetary compensation directly; the Special Civil Part (1) properly found credible the plaintiff’s reasonable expectation to be reimbursed for his expenses and (2) properly found no reliable evidence of an agreement for hourly compensation; the same failure of proof that barred the plaintiff’s breach of contract claim also would have barred claims based on quantum meruit and unjust enrichment, if they had been properly pleaded.

EMPLOYMENT LAW
FRANKEL v. FAIR LAWN BOARD OF EDUCATION
Appellate Division, A-4420-04T5, November 15, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18821

Summary judgment for the defendant Board of Education and the individual defendants affirmed in an action under the Conscientious Employee Protection Act; the plaintiff nontenured teacher disputed the Board’s reasons for his termination, and he claimed that he was terminated because he “blew the whistle” on a teacher who had improperly prepared her students and because he refused to join in the ensuing cover-up; the trial court correctly concluded that the plaintiff had not identified a clear mandate of public policy that he could have reasonably believed that the Board was violating; although it recognized the importance to the public of competent and effective public school teachers, the Appellate Division declined to conclude that it was sufficient for a CEPA claim that the plaintiff reasonably believed that public policy was violated by the Board’s support of a teacher whom the plaintiff contended was incompetent.

CRIMINAL TRIALS
STATE v. SANCHEZ
Appellate Division, A-4553-04T1, November 15, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18822

Conviction of shoplifting following a trial de novo in the Law Division affirmed; a loss prevention investigator allegedly saw the defendant pocket merchandise; the Municipal Court denied the defendant’s request for a change of venue, which was based on the fact that the investigator had testified in several other cases in the Municipal Court, and it found that the defendant’s testimony was not credible; the Law Division relied on the Municipal Court’s credibility determinations; the defendant’s contention that his conviction had to be reversed because the Municipal Court did not grant his motion to change venue lacked merit, and the Law Division correctly concluded that the record did not indicate that the Municipal Court was biased; the record supported the Law Division’s findings on the shoplifting charge, and the Appellate Division had to defer to the Law Division’s resolution of credibility issues.


To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


Click this link to unsubscribe to the Daily Briefing email



Copyright © 2005 The New Jersey Lawyer Inc. All rights reserved.