NEW JERSEY LAWYER

DAILY BRIEFING      11/24/2005


News Briefs

PIT BULL WINS PROTECTION FROM OWNER
In an unusual “man bites dog” story, a Mercer County judge has issued a restraining order keeping a man away from his pit bull. Judge Maria Sypek’s order protects Tigger from Eric Ford of Washington Township, who was told to stay away from both his dog and his mother. Ford’s mother called police this month after he allegedly attacked the dog with a motorcycle helmet and threatened to kill it with a butcher knife. “It’s my dog. I can kill it if I want to,” Ford is said to have told his mother. She said he ripped the phone from the wall when she tried to call the police on her son. Casey DeBlasio, spokeswoman for the Mercer County Prosecutor’s Office, said this is the first time she’s heard of such an order. 11- 21-05

DUBIOUS DISTINCTION FOR CAMDEN
Although Camden County Prosecutor Vincent R. Sarubbi notes the crime rate in Camden has been dropping, the city for the second consecutive year has been dubbed the most dangerous place in the country. That’s according to Morgan Quitno, a company based in Lawrence, Kan., that has published city rankings the past eight years based on analyzing data on education, crime and health care. Camden led the list of the 10 most-dangerous cities with populations more than 75,000. The others, in order, are Detroit, St. Louis, Flint, Mich., Richmond, Va., Baltimore, Atlanta, New Orleans, Gary, Ind., and Birmingham, Ala. The annual survey ranked Newton, Mass., the nation’s safest city, with New Jersey’s Brick Township placing fifth-safest. 11-21-05

MEDIATION PILOT IN MUNICIPAL COURTS TO START IN JANUARY
An 18-month presumptive mediation pilot program will begin in January in seven municipal courts statewide. The New Jersey Supreme Court approved the pilot in Fair Lawn, Fort Lee, Galloway, Hoboken, Lawrence, North Wildwood and West Deptford. It’s designed to see if presumptive mediation is a more effective and efficient method to resolve citizen disputes than the current practice. Now, each municipal court determines which, if any, of its eligible cases should be diverted to mediation. Under the pilot, all minor disputes brought by private citizens will be presumed for mediation, except in certain cases. The exceptions are those involving serious injury, repeated acts of violence between the parties, ones that clearly demonstrate psychological or emotional disability of a party, domestic violence and ones involving motor-vehicle violations. 11-21-05

LAWYER BUMPED FROM FLIGHT WINS REFUND
A Manhattan judge has ordered Continental Airlines to pay $3,110 to a New York lawyer who sued after he and his 13-year-old daughter were bumped from a flight to Colorado for a ski trip last Christmas. Thatcher Stone sought compensation for his ruined trip. While Continental refunded him the price of the $2,000 tickets on the spot after being unable to get him on another flight, the carrier refused to compensate him for $1,360 he had prepaid for a ski lodge, lift tickets and his daughter’s rented ski equipment. Judge Diane Lededeff in Small Claims Court awarded Stone $1,000 for inconvenience, $750 for loss of use of the winter clothing and skis that Continental personnel refused to remove from the plane, and the $1,360 he sought for the prepaid items. The airline said its limit was $400. Continental spokesman Dave Messing complained the judge was trying to “rewrite” federal regulations on compensating bumped passengers. 11-21-05

DNA EVIDENCE HELPS POLICE CRACK 1983 MURDER CASE
Prosecutors in Texas aided by DNA evidence have won capital murder indictments against suspects in the killing of five people kidnapped from a fast-food restaurant more than 20 years ago. Darnell Hartsfield and Romeo Pinkerton have been charged on five counts each in the September 1983 slayings of five people taken at gunpoint from a Kentucky Fried Chicken store and found in an oil field the next day with gunshot wounds to the head. State Attorney General Greg Abbott said authorities uncovered new evidence by using DNA and other technology unavailable decades ago. 11-21-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, NOVEMBER 21, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, NOVEMBER 21, 2005:

EMINENT DOMAIN
MOUNT LAUREL TOWNSHIP v. STANLEY
New Jersey Supreme Court, A-103/104, November 21, 2005. (13 pages). Facts-on-Call Order No. 92738

In the context of determining the date of just compensation for condemnation pursuant to N.J.S.A. 20:3-30, a condemnor “substantially affects the use and enjoyment of the property by the condemnee” within the meaning of §20:3-30(c) when its action directly, unequivocally, and immediately stimulates an upward or downward fluctuation in value that is directly attributable to future condemnation.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, NOVEMBER 22, 2005.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON MONDAY, NOVEMBER 21, 2005.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
WALKER v. MITCHELL-DAVIS
Appellate Division, A-6005-03T5, November 21, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18852

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, who also had been injured in an accident “ten or twenty years ago,” failed to produce objective evidence of a qualifying injury and failed to establish a causal connection due to the lack of the comparative analysis required by Polk v. Daconceicao; however, the findings of two doctors and the objective tests on which they relied were sufficient evidence from which a jury could find that the plaintiff had suffered permanent injuries, and the record supported her contention that, although both of her accidents injured the same body parts, the “minor injuries” that she had sustained “many years ago” had completely resolved and were asymptomatic when the accident resulting in this action occurred.

WITNESSES
WILSON v. BILINKAS
Appellate Division, A-891-04T5, November 21, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18854

Order that declared that the opinion of the plaintiff playground equipment company’s insurance expert was a net opinion and that dismissed the professional negligence complaint against the defendant insurance brokers reversed and remanded; following the cancellation of its policy for “completed operations” coverage, the company became responsible for $2 million of a settlement with a third party who was injured by the company’s equipment; the expert’s report stated that, based on “the standards expected in the insurance industry,” the brokers breached their duty to the company by not informing it of its continuing exposure to claims arising from prior installations of its equipment; the report’s failure to identify the “standards” or to mention a custom or recognized practice in the insurance industry did not render the expert’s opinion a net opinion because the expert could have provided the missing information at trial.

APPELLATE PROCEDURE
BERGEN COMMUNITY ACTION PROGRAM, INC. v. ZONING BOARD OF ADJUSTMENT FOR THE CITY OF HACKENSACK
Appellate Division, A-2840-04T2, November 21, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18853

Appeal by the defendant Zoning Board from a January 14, 2005 order that was entered by the Law Division on the plaintiff homeless shelter’s motion to strike conditions that were imposed on it by the Board dismissed as untimely; a June 24, 2004 order entered by the Law Division remanded the shelter’s application to the Board for the “limited purpose” of adopting a resolution to grant the shelter a use variance to expand its hours of operation; however, the Board on remand imposed conditions on the shelter instead of approving the shelter’s application, and the shelter moved to strike the conditions; the Board’s appeal was untimely because the June 24 order was a final order appealable as of right and because the Board did not appeal within the Rule 2:4-1 time limit of 45 days.

REAL PROPERTY
ALBANESE v. GRANT
Appellate Division, A-112-04T3, November 21, 2005, not approved for publication. (34 pages). Facts-on-Call Order No. 18855

Order granting specific performance of land purchase and option agreements to the plaintiff buyer affirmed; contrary to the defendant seller’s arguments on appeal, the trial court did not err (1) by tolling the contractual 150-day period within which the buyer had to obtain subdivision approval because the delay arose from the seller’s unpaid property taxes, (2) by finding that the seller had waived his right to terminate the contract based on the expiration of the 150-day period because he had acknowledged earlier the expiration of the 150-day period but had chosen not to terminate the contract, (3) by finding that the seller was equitably estopped from exercising his right to terminate the contract because the buyer reasonably could have relied on the seller’s behavior to expect that the contract would not be terminated, and (4) by finding that the intent of the parties was effectuated by the buyer’s exercise of the option, even though he sent notice of that exercise only to the seller’s attorney, contrary to the option agreement.

TAXATION
OWNERS MAINTENANCE CORP. v. BOROUGH OF FORT LEE
Appellate Division, A-308-04T5, November 18, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18850

Summary judgment for the defendant Borough affirmed in an action challenging the plaintiff landowner’s 2001 tax assessment; the Borough’s 1995 ordinance, which would vacate public streets to facilitate the development of the plaintiff’s land, was to become effective when the plaintiff dedicated a street to the Borough; that dedication occurred in 2000, and the plaintiff’s assessment more than doubled in 2001; the Tax Court correctly concluded that the County Tax Board’s order for the Borough “to rollback all the assessments that were changed in 2001” did not apply to the plaintiff’s land; the County Tax Board’s order specifically excluded assessments based on zoning changes, and the zoning change to the plaintiff’s land occurred upon the street dedication in 2000; even if the zoning change had occurred by 1995, the plaintiff had obtained a benefit to which it was not entitled, and the Tax Board order did not bar the Borough from correcting that error.

HUSBAND AND WIFE
HUSAIN v. HUSAIN
Appellate Division, A-1003-04T3, November 18, 2005, not approved for publication. (22 pages). Facts-on-Call Order No. 18849

Post-divorce-judgment order of equitable distribution entered in a separate maintenance action affirmed in part, reversed in part, and remanded; the trial court erred (1) by awarding the plaintiff ex-wife, who died while this action was pending, retroactive alimony without considering all of the factors set forth in N.J.S.A. 2A:34-23b, (2) by awarding the ex-wife reimbursement for the value of caretaking services provided by her mother during the ex-wife’s illness in the absence of evidence of a monetary obligation to her mother, (3) by awarding the ex-wife attorney’s fees without making findings of fact or expressing any reasons, and (4) by requiring, without adequate explanation, that the defendant ex-husband pay the ex-wife’s unpaid medical bills; the issue of the ex-wife’s reimbursement for home maintenance costs that were covered by pendente lite support was moot, the issue of distributing the ex-wife’s IRA had to be addressed on remand, and the issue of distributing the ex-husband’s bank account was not properly before the court.

PARENT AND CHILD
WOLFE v. BALFE
Appellate Division, A-3979-04T5, November 18, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18851

Post-divorce-judgment order entering a judgment that awarded the plaintiff mother $11,746.50 for one-half of the tuition for the parties’ son to attend the University of Delaware since November 2003 and $51,630 in arrears for earlier tuition affirmed; contrary to the defendant father’s arguments on appeal, (1) the trial court properly exercised its discretion by ordering him to reimburse the mother $11,746.50 because the parties’ property settlement agreement required him to pay his son’s entire tuition and because the father did not file financial information to support his claim of changed circumstances and (2) the son’s choice of college should not have been restricted to a college that charged tuition comparable to a New Jersey institution because the PSA contained no such restriction and because the father did not present proof that the University charged unreasonable tuition.

CRIMINAL TRIALS
STATE v. RUUTIKAINEN
Appellate Division, A-135-04T3, November 18, 2005, not approved for publication. (22 pages). Facts-on-Call Order No. 18848

Convictions of third-degree interference with custody and fourth-degree contempt of court for violating a custody order affirmed but remanded for sentencing to merge the two convictions; the defendant took his son away from the son’s mother to spend the night at a local motel; contrary to the defendant’s arguments on appeal, (1) the trial court did not err by denying his motion to dismiss the indictment, even though the grand jury had not been given a copy of the custody order, (2) the trial court did not err by denying his motion for a judgment of acquittal, (3) the prosecutor’s statements during summation did not violate the defendant’s right to remain silent, and (4) there was no error in the trial court’s jury instructions; however, the convictions should merge because establishing contempt of court for violating the custody order did not require proof of facts beyond those required for interference with custody.


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