NEW JERSEY LAWYER

DAILY BRIEFING      11/23/2005


News Briefs

JUDGES, LAWYERS INVITED TO COMPLETE SURVEY ON JURY PROCEDURES
New Jersey judges and lawyers are being encouraged to complete a national survey on jury procedures. The survey, sponsored by the National Center for State Courts, is designed “to promote public awareness and understanding of jury service and to support state and local courts in their efforts to improve the jury system.” One component of the study — a judge and lawyer survey — seeks input from those involved in jury trials. It’s posted on the New Jersey judiciary’s website, njcourtsonline.com/survey.pdf, and consists of five multi-part questions dealing with length of jury voir dire and deliberations, whether certain procedures were used and whether any special issues arose at trial. The survey should be completed by Dec. 16. 11-22-05

PART-TIME ATTORNEY SCHEDULES UNDER-UTILIZED
Although most large law firms make part-time schedules available to experienced lawyers, few have taken advantage of this option, reports NALP, the Association for Legal Career Professionals in Washington, D.C. More than 1,300 law offices were surveyed with 96.2 percent allowing part-time schedules this year. Only 4 percent took advantage. That included 5.2 percent of the associates and 2.8 percent of the partners. Part-time schedules weren’t as readily available in firms of 100 or fewer lawyers. In the northern New Jersey/Newark area, of the 23 firms surveyed, 95.7 percent allowed part-time work and 3.3 percent of attorneys took advantage of that. These included 5.4 percent of the 1,176 associates and 0.7 percent of the 919 partners. 11-22-05

BAY STATE THREATENS CHARGES IF GROCERY OPENS ON HOLIDAY
Massachussets, home to the 1621 harvest feast people have come to think of as the first Thanksgiving, has put the kibosh on last-minute shopping for turkeys and the trimmings. In a move that would have the Pilgrims from Plimoth Plantation rolling over in their graves, Whole Foods supermarket chain planned to open its 14 stores on Thanksgiving. The rival Shaw’s chain complained to Attorney General Thomas Reilly, whose office issued a legal opinion that Whole Foods would risk criminal charges under the state’s centuries-old blue laws. While many Puritan-era blue laws, passed in the 1600s to keep colonists in church or at home on Sundays, have been repealed, one that remains in effect requires all stores — except convenience stores and gas stations — to close Thanksgiving, Christmas and New Year’s Day. 11-22-05

IOWA LAWYER SUSPENDED FOR WORKING BOTH SIDES OF CASES
The Iowa Supreme Court has temporarily suspended the law license of an attorney who handled criminal cases as both prosecutor and defense attorney. Bradley Howe, prosecutor in Spencer, Iowa, is barred from practicing for four months. The Des Moines Register wrote about Howe and other prosecutors in February 2004, revealing those lawyers were responsible for plea bargains that routinely resulted in tickets for moving traffic violations being converted to fictitious citations for defective cowl lamps. Cowl lamps are side-mounted lights that were a common fixture on cars in the 1940s. Court records showed Howe converted more than 170 tickets between 1998 and 2004 to cowl-lamp violations. “Filing charges that are blatantly bogus — even when defendants are willing to plead guilty to them — does not promote confidence in the integrity of the judicial process,” the Supreme Court said. 11-22-05

JUDGE ASKS TO BE SUSPENDED FOR PARKING-LOT INCIDENT
A Detroit judge faced with the possibility of losing his career has asked the state’s disciplinary body to instead suspend him from the bench for 90 days for a dispute he had with Detroit’s deputy mayor over a parking spot. Through his attorney, 36th District Court Judge David Bradfield asked for the suspension. The incident occurred April 6, when Deputy Mayor Anthony Adams was in his car in a parking space reserved for judges. Adams was there to meet his wife, Judge Deborah Ross Adams, for lunch. Bradfield drove up, cursed at Adams, ordered him to move his car and poked him in the chest five times during the dispute. Paul Fischer, executive director of the state Judicial Tenure Commission, is seeking Bradfield’s removal from the bench. The commission, comprised of lawyers and judges, will recommend what penalty, if any, to the state Supreme Court. 11-22-05

HAPPY THANKSGIVING!
Because of the holiday weekend, NJL’s Daily Briefing won’t be published until Monday, Nov. 28.



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, TUESDAY, NOVEMBER 22, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, NOVEMBER 22, 2005.

THE SUPREME COURT has announced that it will release an opinion in JUAREZ v. J.A. SALERNO & SONS, INC., A-66, on November 23, 2005. The issue on appeal in Juarez addresses whether the plaintiff’s evidence of injury resulting from an automobile accident satisfied the N.J.S.A. 39:6A-8a verbal threshold.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, NOVEMBER 22, 2005.

NOT APPROVED FOR PUBLICATION
INSURANCE
SANTOS v. FARM FAMILY CASUALTY INSURANCE CO.
Appellate Division, A-2086-04T5, November 22, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18860

Partial summary judgment on liability for the plaintiff driver and final judgment awarding him $100,000 plus interest affirmed in an action to confirm an arbitration award of uninsured motorist benefits; the plaintiff, who was insured by the defendant under a policy that provided $100,000 in UM coverage, filed a UM claim after he drove into a tree; the arbitration panel had to resolve a factual dispute about whether the plaintiff had swerved to avoid a deer or to avoid an oncoming driver who had swerved to avoid a deer, and it found the oncoming driver fully liable; contrary to the defendant’s arguments on appeal, (1) despite the differing accounts of the accident, there was no basis to set aside the award under N.J.S.A. 2A:23B-23(a)(1) as “procured by fraud, corruption, or undue means” and (2) the differing versions of the accident recounted by the plaintiff and his wife did not constitute a material misrepresentation sufficient to void coverage.

CIVIL RIGHTS
WHITNEY v. CITY OF JERSEY CITY
Appellate Division, A-3502-03T3, November 22, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18859

Denial of the plaintiff’s motion to vacate the dismissal of his Tort Claims Act claims and his 42 U.S.C. §1983 civil rights claims reversed in part and remanded for trial on the civil rights claims in an action arising from the plaintiff’s alleged illegal detention or arrest with the use of excessive force; the plaintiff alleged that he was dragged from his car at gunpoint, knocked down, handcuffed, and held by one of the defendant police officers before the police dispatcher realized that the officers had stopped the wrong car; under DelaCruz v. Borough of Hillsdale, (1) the plaintiff’s claims based on the defendants’ negligence and intentional acts had to be dismissed due to the plaintiff’s failure to satisfy the Tort Claims Act verbal threshold but (2) the plaintiff was entitled to proceed to trial on his civil rights claims to establish that there was no objectively reasonable basis for the officers’ actions and that they therefore were not entitled to qualified immunity.

EMINENT DOMAIN
BOROUGH OF FORT LEE v. HUDSON TERRACE REALTY MANAGEMENT CORP.
Appellate Division, A-334-04T2, November 22, 2005, not approved for publication. (28 pages). Facts-on-Call Order No. 18863

Order appointing commissioners for a condemnation hearing and denying the defendant lienholder’s cross-motion to dismiss the condemnation complaint for failure by the plaintiff municipality to engage in bona fide negotiations pursuant to N.J.S.A. 20:3-6 affirmed; the municipality refused to negotiate with the lienholder because it was not the record title owner of the property that the municipality sought to redevelop; before the lienholder could obtain title to the property, the municipality filed its condemnation complaint; contrary to the lienholder’s appellate arguments, the trial court correctly found (1) that the municipality had no duty to engage in bona fide negotiations with the lienholder or to wait for the lienholder to obtain title and (2) that the municipality’s negotiations with the record title owner before the filing of the complaint were in good faith; the commissioners’ hearing on valuation should address the lienholder’s main objection that the municipality’s offer was too low.

EMPLOYMENT LAW
DASS v. NATIONAL RETAIL TRANSPORTATION, INC.
Appellate Division, A-1100-04T1, November 22, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18862

Summary judgment for the defendant employer in an action under the Conscientious Employee Protection Act affirmed; the plaintiff mechanic alleged that he had been terminated for refusing to perform unpaid “personal jobs” for the employer’s vice president and for complaining about those jobs to the employer’s owners, but the employer asserted that the mechanic was terminated for insubordination after he refused to fix the employer’s truck; the mechanic’s CEPA claim failed because he did not demonstrate a causal connection between his whistleblowing activity and his termination; the undisputed evidence supported the employer’s legitimate, nonretaliatory reason for the termination, and the mechanic did not provide evidence that the employer’s proffered reason was a pretext for retaliation.

LANDLORD AND TENANT
EDWARDS v. MT. PISGAH REALTY, LLC
Appellate Division, A-2720-04T5, November 22, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18861

Judgment of $2,826.80 for the plaintiff tenant on her claim for reimbursement of rent overpayment affirmed as modified; a rent control ordinance limited the tenant’s rent to $331.49 per month and limited her security deposit to $497.24, but the tenant testified that she had paid $775 per month for four months and $800 for the security deposit; the record supported the trial court’s finding that the tenant was credible and its rejection of the defendant landlord’s claim that it had received only part of the alleged payments; however, the Appellate Division exercised its original jurisdiction under Rule 2:10-5 to find that the difference between what the tenant had paid — $3,900 — and what she should have paid under the ordinance — $1,823.20 — was only $2,076.80, and it modified the judgment accordingly.

REAL PROPERTY
L’ESPERANCE v. DEVANEY
Appellate Division, A-286-04T1, November 21, 2005, not approved for publication. (37 pages). Facts-on-Call Order No. 18856

Summary judgment for the plaintiff condominium owner in a Law Division action to eject the defendant ex-girlfriend and denial of the defendant’s request to transfer the matter to the Family Part, where her palimony action was pending, affirmed; the parties had a long-term romantic relationship, and the plaintiff had “essentially supported” the defendant since 1983 and had repeatedly promised her that he would get divorced, marry her, and father her child; the plaintiff leased a condominium for the defendant and gave her a check in 1999 to purchase it in his name at a public auction; the parties never lived together, and the plaintiff spent only a few nights at the condominium; the relationship ended in August 2003; on the “narrow question” presented, the Law Division correctly concluded that there was not “a scintilla of evidence” that the plaintiff had promised the condominium to the defendant; summary judgment rendered the transfer issue moot.

TAXATION
RONSON CORP. v. DIRECTOR, DIVISION OF TAXATION
Appellate Division, A-6776-03T2, November 21, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18857

Tax Court judgment that affirmed the Division of Taxation’s assessment of additional corporation business taxes for the years 1997 through 2000 affirmed; the Tax Court properly determined that the plaintiff corporation had incorrectly calculated its reported taxable income (1) for 1997 by using a net operating loss carryover that it had created in 1996 through a dividend exclusion and (2) for 1998 through 2000 by using a net operating loss carryover that it had previously used in 1995; contrary to the corporation’s arguments on appeal, N.J.S.A. 54:10A-4(k)(5), which creates a dividend exclusion from entire net income, and N.J.S.A. 54:10A-4(k)(6), which defines the net operating loss carryover deduction, are not contradictory, and the statutory requirement that the carryover deduction be computed without the §54:10A-4(k)(5) exclusion is not inconsistent with the statutory definition of “entire net income.”

REAL PROPERTY
HEUER & CO. v. HARRY
Chancery Division, Bergen County, C-96-05, November 4, 2005, released November 9, 2005, not approved for publication. By Doyne, J. (7 pages). Facts-on-Call Order No. 18843

In an action for specific performance of a real estate sales contract, motions by the plaintiff buyer (1) to dismiss the defendant seller’s counterclaim for failure to state a claim pursuant to Rule 4:6-2(e) granted in part but denied in part and (2) for attorney’s fees and costs for frivolous litigation pursuant to Rule 1:4-8(b)(1) denied; the seller’s claim that the buyer’s filing of a lis pendens encumbering and “slandering” the seller’s title to the property constituted a breach of contract had to be dismissed because the seller did not identify any statutory or common law authority to support that claim and because the contract did not prohibit the filing of a lis pendens; however, the seller’s claim that the buyer breached an express condition of the contract by refusing to honor the seller’s termination of the contract — which followed the buyer’s failure to timely waive or satisfy the contract contingencies and to pay an additional deposit required by the contract — was viable, and attorney’s fees and costs therefore could not be awarded to the buyer.

FROM THE ADMINISTRATIVE AGENCIES
PENSIONS AND BENEFITS
KOSAKOWSKI v. STATE HEALTH BENEFITS COMMISSION
OAL Docket No. TYP 2028-04, Initial Decision: October 11, 2005, Final Agency Decision: November 17, 2005. By Metzger, ALJ. (6 pages).

The State Health Benefits Commission adopted as its final decision the administrative law judge’s initial decision, which determined that the petitioner retired City fire chief was not eligible to participate in the State Health Benefits Plan. The petitioner’s title was not subject to the collective bargaining agreement that required the City to provide health insurance to retired firefighters. However, the ALJ observed that it appeared to be the City’s practice to treat retirees, including the petitioner, as if they were covered by the CBA for the purpose of health benefits and that the City therefore had been sending monthly payments of $62.50 to the petitioner. The petitioner had returned those payments because he believed he was not entitled to them, and he had sought instead to enroll in the Plan to obtain better health coverage for his wife, who was ill. The ALJ concluded that the petitioner was not eligible for enrollment pursuant to the “plain” language of N.J.S.A. 52:14-17.32j, which renders ineligible any retiree “receiving health benefits coverage from an employer.”


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.