NEW JERSEY LAWYER

DAILY BRIEFING      11/28/2005


News Briefs

$1.2 MILLION SETTLEMENT IN WORKER’S FALL
A Millville ironworker severely injured in a fall three years ago at an Atlantic City worksite has agreed to a $1.2 million settlement in a negligence suit against his former employer and other contractors. In August 2002, Jeffrey Neder fell 30 feet from a building being framed at Atlantic City International Airport, fracturing a hip and right hand, and sustaining a serious concussion. His attorney in Neder v. Stanker & Galetto, Gary F. Piserchia of Parker McCay in Marlton, said Neder “suffered debilitating injuries, lost income and will never be the same.” Attorneys for the four defending firms were Marilou Lombardi of Prutting & Lombardi in Audubon for Stanker & Galetto, Dawn Dezii of Margolis Edelstein in Westmont for Washington Group International, L. Patricia Sampoli of Youngblood Corcoran Lafferty Stackhouse Hyberg & Waldman in Pleasantville for W.J. Industries, and Kevin M. Bothwell of Thompson Becker & Bothwell in Bellmawr for El Taller Colaborativo. Superior Court Judges Steven P. Perskie and William Nugent presided. 11-23-05

ASIAN-AMERICAN, HISPANIC LAW SCHOOL ENROLLMENT GROWING
Minority enrollment is changing at New Jersey’s three law schools. The percentage of minority students in this year’s entering class at Rutgers-Camden doubled from 17 to 34 percent this past year. Otherwise, the percentage of minority students has been holding steady. But larger numbers of those students are Asian-American or Hispanic. Hispanics in the three law schools comprise 11.5 percent of the first-year enrollment compared to 6.2 last year. Asian-Americans now comprise 10.5 percent of the enrollment. For the full story, see the Nov. 28 New Jersey Lawyer. 11-23-05

WOMEN, MINORITIES INCREASE RANKS SLIGHTLY IN BIG LAW FIRMS
As has been the case for years, women and minorities still aren’t making it into partnership ranks. While the nation’s biggest law firms have more women and racial minorities among their partners, the progress is marginal and doesn’t reflect the demographics of law school graduates, according to the latest survey by NALP, the Association for Legal Career Professionals. It found minorities comprise 4.6 percent of partners in major law firms this year, up from 4.3 percent last year. Women comprise 17.29 percent of partners, up slightly from 17 percent in 2004. “These numbers suggest that, relative to the attorney population as a whole, and relative to the demographic composition of law school enrollment, women attorneys and attorneys of color continue to be under-represented among partnership ranks at these firms,” the Washington, D.C.-based organization said. Since the 1980s, between 40 percent and 50 percent of law school students are women, and minority graduates have doubled from 10 percent to 20 percent. The association said the gains since 1993, when it began compiling the data, are “only marginal.” 11-23-05

$4.2 MILLION SEX-ABUSE VERDICT COULD SET STANDARD NATIONALLY
Two sisters who were sexually abused by their stepfather, a Mormon priest, are entitled to $4.2 million, a Superior Court jury in Washington state has found. The jury concluded that The Church of Jesus Christ of Latter-Day Saints, commonly known as the Mormon Church, is liable for intentional misconduct and negligence. Lawyers said the large verdict could affect settlement values in abuse cases against the Roman Catholic Church and other religious institutions. Settlements in cases involving Catholic priests nationwide have averaged less than $1 million per victim. The girls’ abuser is no longer their stepfather and no longer a priest. 11-23-05

JUDGE GETS JAIL IN CRUCIFIX DISPUTE
In traditionally Roman Catholic Italy, the courtrooms are decorated with the motto “the law is equal for everyone” in large letters. There also are crucifixes on the wall behind the judge’s bench. Insisting that religious symbols have no place in a court of law, Judge Luigi Tosti has refused to hear cases for the past few months. Now, he’s facing seven months behind bars for failing to carry out his official duties and has been banned from holding public office for one year. Tosti was convicted and sentenced in absentia. He declined to attend the recent hearing because courthouse officials refused to remove the crucifix. Defendants in Italy are not required to attend their trials. 11-23-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, NOVEMBER 23, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, NOVEMBER 23, 2005:

INSURANCE
JUAREZ v. J.A. SALERNO & SONS, INC.
New Jersey Supreme Court, A-66, November 23, 2005. (6 pages). Facts-on-Call Order No. 92739

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA had to be reversed because the Appellate Division had superimposed the same serious injury standard that was disapproved by the New Jersey Supreme Court in Serrano v. Serrano. The Supreme Court repeated that a plaintiff need prove only that her injuries satisfy one of the AICRA threshold categories.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, NOVEMBER 28, 2005.

THE NEW JERSEY COURTS WILL BE CLOSED ON THURSDAY, NOVEMBER 24, AND ON FRIDAY, NOVEMBER 25, 2005.



APPROVED FOR PUBLICATION
PUBLIC EMPLOYEES
IN RE MALONE
Appellate Division, A-2384-03T5, approved for publication November 23, 2005. (11 pages). Facts-on-Call Order No. 92740

In awarding attorney’s fees to the appellant after she prevailed in a contested disciplinary hearing, the Merit System Board applied the $200 hourly rate under N.J.A.C. 4A:2-2.12(c)3 and improperly refused to make an upward adjustment pursuant to N.J.A.C. 4A:2-2.12(e) to reflect the $250 hourly fee that the appellant actually had paid to her attorney. The Board’s award was subject to de novo review and was not entitled to the usual deference afforded to an administrative determination.

PUBLIC MEETINGS
TARUS v. BOROUGH OF PINE HILL
Appellate Division, A-2072-04T1, approved for publication November 23, 2005. (19 pages). Facts-on-Call Order No. 92741

There is no right under the New Jersey Constitution to videotape public meetings of a municipal governing body. To the extent that such a right exists under the common law, exercise of that right is not absolute but is subject to reasonable governmental regulation and control. In this case, there was no showing that the municipal governing body’s temporary and limited prohibition of videotaping meaningfully interfered with the ability of the plaintiff or the public to inform themselves of the proceedings or with their right of access to those proceedings.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
RODRIGUEZ v. HOPEWELL
Appellate Division, A-1727-04T2, November 23, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18870

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; the trial court concluded that the plaintiffs, both of whom were injured in the automobile accident, had not demonstrated either objective permanent injuries sufficient to satisfy the first prong of the Oswin v. Shaw test or serious impact on their lives sufficient to satisfy the second prong; however, (1) the evidence — including MRIs of both plaintiffs and the certification of one plaintiff’s chiropractor — “readily” permitted an inference that each plaintiff had suffered a permanent injury in the accident and (2) the serious impact prong of the Oswin test does not apply following the New Jersey Supreme Court’s recent decision in DiProspero v. Penn.

LAND USE
DeCLEMENT v. TOWNSHIP OF ELK
Appellate Division, A-2199-04T2, November 23, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18868

Order dismissing the plaintiff property owners’ complaint in lieu of prerogative writs against the municipal defendants for their refusal to remove a condition on final site plan approval granted to the owners affirmed; the condition allowed the owners to operate their gas station and convenience store only from 6 a.m. to midnight; after rezoning, the owners sought to eliminate the time-of-operation restrictions to better compete, but the defendant Zoning/Planning Board denied their application to amend their site plan; contrary to the owners’ appellate arguments, the trial court properly refused to set aside the Board’s decision as arbitrary and capricious (1) because the store cited by the owners as a nearby comparable property allowed to operate 24 hours a day was a mile away, was in a different zone, and was different from the owners’ business and (2) because the Board did not deny a permitted use but instead appropriately exercised its discretion and “reaffirmed a safeguarding condition by reason of the nature, location and incidents of the particular use.”

REAL PROPERTY
FOSS v. FRANK PASQUALE LIMITED PARTNERSHIP
Appellate Division, A-3058-04T3, November 23, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18869

Order granting the plaintiff buyers’ motion for summary judgment and denying the defendant sellers’ cross-motion for summary judgment in an action for specific performance of a contract to purchase real property affirmed substantially for the reasons expressed by the trial court; tenants at the subject property delayed their departure from the premises for several months; the plaintiffs notified the defendants that time was of the essence, and the parties agreed to a closing date that was about a month after the tenants had vacated; the defendants did not appear at the closing, and they declared the contract terminated — based on the risk-of-loss provision of the contract — because, due to vandalism and neglect, damage to the property allegedly exceeded 10 percent of the contract price; the plaintiffs sued after the defendants did not let them waive the risk-of-loss provision; the trial court rejected the defendants’ attempt to create a factual dispute over the plaintiffs’ “generalized allegations of dilatory tactics” and instead found that the contract allowed the plaintiffs “to waive damage discovered.”

DRUNK DRIVING
STATE v. FREDRICKSON
Appellate Division, A-2875-04T3, November 23, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18871

Denial of the defendant’s motion to suppress evidence in a prosecution for driving while intoxicated affirmed; after the Municipal Court denied his motion, the defendant pleaded guilty and appealed the denial to the Law Division, asserting that his vehicle was stopped illegally; the police officer testified that she stopped the defendant’s vehicle at about 3:20 a.m. after observing it stop abruptly at an intersection and make a left turn without signaling; the record supported the Law Division’s conclusion that the officer had a reasonable and articulable suspicion that a traffic violation had occurred and a reasonably objective basis to stop the vehicle; the State was not required to prove the occurrence of the suspected motor vehicle violation.

HUSBAND AND WIFE
HOROWITZ v. HOROWITZ
Appellate Division, A-6547-03T3, November 22, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18865

Post-divorce-judgment order that retroactively recalculated the defendant ex-husband’s alimony obligation from 1999 to the present and that imputed income to him for 2004 affirmed in part, reversed in part, and remanded; a “specific formula” in the parties’ property settlement agreement provided that alimony was based on one-third of the ex-husband’s adjusted gross earned income; after the ex-husband’s income decreased in 2002 and 2003 due to medical problems that prevented him from working at his computer business, the plaintiff ex-wife moved for an order compelling the ex-husband (1) to provide financial information so that his “reasonable income” for alimony purposes could be calculated and (2) to pay alimony in accordance with that calculation; as to the recalculation, the trial court did not abuse its discretion by disallowing deductions for business expenses from the calculation of adjusted gross earned income, but there was no basis for retroactivity beyond the July 2003 filing date of the ex-wife’s motion and for halving the ex-husband’s claimed costs of goods sold in 2002 and 2003 or otherwise imputing income to him for 2002 and 2003; as to imputed income for 2004, the trial court failed to provide the factual findings or the explanation required by Rule 1:7-4.

REAL PROPERTY
WASHINGTON MUTUAL BANK, F.A. v. TEODORESCU
Appellate Division, A-1778-04T2, November 22, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18864

Orders (1) that granted the motion of the plaintiff successor in interest of a mortgage assignee to strike the answer and counterclaim of the defendant property owners in a foreclosure action, (2) that entered default and transferred the matter to the foreclosure unit as an uncontested case, and (3) that denied the defendants’ cross-motion to compel discovery and transfer the case to the U.S. District Court for the District of New Jersey affirmed; the trial court correctly concluded that the defendants did not satisfy the procedural requirements for removal under 28 U.S.C. §1446 and that the case was not removable even if they had met those requirements because they did not establish federal subject-matter jurisdiction; the trial court also correctly found that the defendants could not assert as a defense or as a private cause of action in their counterclaim that the plaintiff as lender had failed to satisfy federal regulations regarding loss mitigation and the servicing of loans that are governed by the Federal Housing Administration; the defendants did not show that the plaintiff’s servicing of the mortgage loan and failure to follow the recommended steps to avoid foreclosure constituted more than the “mere inept handling” of their account, “which would not be unconscionable so as to equitably bar” the plaintiff’s right to foreclose; because the defendants’ claims failed as a matter of law, their motion to compel discovery was “irrelevant.”

SEARCH AND SEIZURE
STATE v. COLON
Appellate Division, A-2608-04T2, November 22, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18867

Order suppressing heroin and syringes seized without a warrant from a vehicle driven by one defendant and in which the other defendant was a passenger affirmed; a police officer on routine patrol stopped and searched the vehicle after seeing it near a residence, recognizing the driver as “a person reported to be involved in drug activity,” following the vehicle for several blocks, and noticing items hanging from the rear view mirror; the trial court credited the testimony of the officer but found that he had lacked a reasonable and articulable suspicion of criminal activity for a Terry stop of the vehicle and seizure of the items; the trial court’s conclusion was correct because (1) a report about drug activity in the area was a month old, (2) the officer had no information that a drug transaction was in process or about to occur that day and at that time and location, and (3) the officer did not observe any drug transaction involving the defendants or any “sufficiently suspicious conduct.”

ESTATES AND TRUSTS
IN RE KNIEF
Chancery Division, Probate Part, BER-P-485-05, November 21, 2005, not approved for publication. By Doyne, J. (11 pages). Facts-on-Call Order No. 18866

On the return of an order to show cause in a dispute about the proper jurisdiction in which to probate the decedent father’s will, request by the plaintiff daughter for preliminary restraints denied and motion by the defendant son to dismiss the daughter’s verified complaint granted; the decedent lived in New Jersey from 1977 until August 2005, when he flew to Florida after learning that he had only a few weeks to live; the decedent died in Florida in October 2005; the son, who was the sole executor, sought to offer the will for probate in Florida, but the daughter asked the Probate Part to enjoin proceedings in any state other than New Jersey; the Probate Part concluded (1) that the daughter was not entitled to preliminary restraints because she did not satisfy all of the elements of Crowe v. DeGioia and (2) that, although it had properly exercised its equitable powers to grant temporary restraints, it should not retain jurisdiction because the son, as the sole executor, could choose where the will would be offered for probate.

CIVIL PROCEDURE
IN RE ESTATE OF FENTON
Chancery Division, Probate Part, Bergen County, BER-P-402-04, November 4, 2005, released November 9, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18858

Motion by the defendants for reconsideration of an October 3, 2005 discovery order denied in a dispute over the amount of the decedent’s augmented estate; the October 3 order (1) was based on a September 9, 2005 decision in which the Chancery Division found that the defendants’ request for copies of 10 years’ worth of bank statements for the plaintiff widow’s joint accounts and her individual accounts was “overbroad and harassing” and (2) limited discovery to one bank statement of the defendants’ choosing for one month of each year; on the issue of reconsideration, the Chancery Division believed that its September 9 decision did not fall within the “narrow corridor” of cases recognized by Cummings v. Bahr, and it also believed that its September 9 decision was “correctly decided”; although the defendants were entitled to obtain the plaintiff’s financial information to determine the amount of the augmented estate, the October 3 order provided the defendants with “ample information,” and the defendants had not demonstrated that a “broad exploration” of the plaintiff’s financial records was necessary.


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