NEW JERSEY LAWYER

DAILY BRIEFING      11/29/2005


News Briefs

NEWARK TO GET $450M FROM PORT AUTHORITY
Newark will receive $450 million under a tentative settlement with the Port Authority of New York/New Jersey expected to be approved when the agency’s commissioners vote on the 2006 budget Dec. 8. The city claimed in a lawsuit filed eight years ago that the Port Authority shortchanged Newark on hundreds of millions of dollars in lease payments for its airport and seaport. Mayor Sharpe James said the settlement is on par with what New York City received in a similar settlement in its dispute about annual rent at JFK and LaGuardia airports. Under the agreement, the Port Authority will give the city $200 million next year, plus $40 million a year until 2011. Newark also will receive $10 million annually for five years for capital investments. 11-28-05

$60.9M AWARD MAY BE LARGEST UNDER FEDERAL TORT ACT
A federal judge in Hialeah, Fla., has awarded $60.9 million — believed the largest ever under the Federal Tort Claims Act — to a couple whose 2-year-old suffered severe brain damage when born in a Navy hospital in 2003. U.S. District Judge Jose A. Gonzalez found after a 12-day trial that the doctors and nurses at the Mayport Naval Station obstetric clinic were negligent. Under the Federal Tort Claims Act, private citizens may sue the federal government for the negligent conduct of its employees. Raiza Bravo and Oscar Rodriguez, a Navy serviceman, claimed doctors waited too long to perform a caesarean section. The boy cannot see, speak or swallow, he cannot respond to any stimulus, and doctors say he likely will die before age 21. 11-28-05

GAY MAN CLAIMS MARITAL PRIVILEGE BANS COMPANION’S TESTIMONY
A gay man charged in an $11.2 million embezzlement case in New York contends the state’s marital privilege law, which protects husbands and wives from having to testify against each other in criminal court, should apply to same-sex partners. Stephen Signorelli of Manhattan is battling charges he stole at least $219,000 from a Roslyn, N.Y., school district as part of a broader series of schemes that cost the district millions. He’s seeking to bar the testimony of his longtime companion, Frank Tassone, the former district superintendent. Tassone pleaded guilty earlier this year to stealing $1 million between 1996 and 2002. He agreed to testify against other defendants as part of a plea agreement. 11-28-05

CHILD GROOM WHO PLAYED HOOKY TO WED FOUND DELINQUENT
A 15-year-old boy in Georgia who skipped school to marry his 37-year-old pregnant girlfriend has been found delinquent by a judge in Gainesville. The boy admitted in a juvenile court hearing that he violated his probation on a previous burglary conviction when he missed school and left his home last month to marry Lisa Lynnette Clark, who has been charged with child molestation and has been ordered not to be within 100 feet of the teen-ager. Juvenile Court Judge Mary Carden ordered the boy into an alcohol- and drug-treatment program, continued his probation, ousted his grandmother as his guardian and ordered he not be released from custody until another relative is named guardian. Under a Georgia law from the 1960s intended to prevent out-of-wedlock births, the teen-ager will be allowed to marry — regardless of his age and without parental consent — if his girlfriend is pregnant. 11-28-05

DISPUTE FOCUSES ON WHETHER MAN’S BEST FRIEND IS ONLY PROPERTY
Some pet owners’ emotional attachment to their canine (and feline) companions is so strong, they consider them a member of the family. In Ohio, the law considers animals their owner’s property. Not so, Tammie Vasek of Macedonia contends, arguing her dog Tasha’s veterinarian should compensate her $2,500 in medical bills and more than $25,000 in damages for mistreating her dog. Dr. Larry Sands of the Valley Animal Hospital in Akron inserted a plate in the dog’s malformed leg during surgery in July, but problems resulting from the surgery led to the dog’s leg being subsequently amputated. Carolyn Matlack, president of Animal Legal Reports Service, which tracks lawsuits and legislation, says, “An animal’s value is considered to be market value as in any other piece of property, like a couch or a chair.” Vasek contends she’s entitled to compensation for the dog’s pain and suffering, potentially diminished lifespan and emotional distress. There is some precedent in California: A 2004 jury awarded the owner of a labrador retriever $10 in value but assessed a $30,000 “unique value” for the pet, which died of liver failure. There was no award, however, for emotional distress and loss of companionship. 11-28-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, NOVEMBER 28, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, NOVEMBER 28, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, NOVEMBER 29, 2005.


APPROVED FOR PUBLICATION
SENTENCING
STATE v. N.G.
Appellate Division, A-2011-04T5, approved for publication November 28, 2005. (17 pages). Facts-on-Call Order No. 92742

N.J.S.A. 2C:47-1 to -10, which governs the sentencing and incarceration of sex offenders at the Adult Diagnostic and Treatment Center, is not unconstitutionally vague, and the defendant was properly sentenced to the ADTC.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
KARAMISAKIS v. BLUMBERG
Appellate Division, A-6904-03T3, November 28, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18875

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed insofar as §39:6A-8a was applied through the deemer statute, N.J.S.A. 17:28-1.4; the plaintiff, who was a Pennsylvania resident and had automobile insurance with a limited tort option, was a passenger in a car that was driven by an unrelated Pennsylvania resident and that was involved in an accident in New Jersey; the plaintiff correctly argued that the deemer statute did not apply to him because he was a passenger and not the driver; although its decision did not further the legislative goal of cost containment, the Appellate Division could not rewrite a statute that was “clear on its face.”

CONTRACTS
LEHMANN COLORADO MEATS, INC. v. RIDGEFIELD FARMS, LLC
Appellate Division, A-259-04T5, November 28, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18878

Judgment entered after a jury verdict that found both the plaintiff meat distributor and the defendant alleged meat packer liable for breach of contract reversed and remanded for a new trial; a new trial was required (1) because the trial court allowed the plaintiff to read the deposition testimony of its chief operating officer at trial and (2) because the award of damages was “fundamentally flawed”; as to the COO’s deposition testimony, he was not “unavailable” within the meaning of N.J.R.E. 804, and the defendant was “greatly prejudiced” because it had no opportunity to challenge before the jury the COO’s assertions and because his testimony dealt with “critical issues,” including the terms of the contract; as to damages, the plaintiff did not present sufficient competent evidence to support its damages claims.

ARBITRATION
FERNANDES v. RAMSEY NISSAN
Appellate Division, A-3085-04T2, November 28, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18877

Denial of the plaintiff automobile lessees’ motion to strike the answers of the defendant lessor and the defendant lease assignee for failure to provide discovery and grant of the defendants’ motion to dismiss an action arising from the lease reversed and remanded; the Special Civil Part incorrectly concluded that it lacked subject-matter jurisdiction due to the lease’s arbitration provision (1) because, according to its express terms, the arbitration provision did not compel arbitration or provide that a party waives all rights to prosecute a claim arising from the lease in a court of law and (2) because neither party had elected to resolve the dispute in arbitration pursuant to the provision by filing a claim with the National Arbitration Forum.

DRUNK DRIVING
STATE v. SMITH
Appellate Division, A-1618-04T2, November 28, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18876

Conviction following a guilty plea of driving while intoxicated in 2004 and sentence as a third or subsequent offender affirmed; the defendant previously had been convicted of DWI in 1978, 1993, and earlier in 2004; contrary to the defendant’s argument on appeal, she was not entitled to be sentenced as a second offender under N.J.S.A. 39:4-50(a)(3) based on the gaps of at least 10 years between her first and second offenses and her second and third offenses or based on the fact that she had been incorrectly sentenced as a first offender for her third offense; State v. Burroughs properly held that a repeat offender who has obtained sentencing leniency under §39:4-50(a)(3) based on gaps between offenses has no vested right to continued leniency for subsequent offenses.

PARENT AND CHILD
VETRI v. VETRI
Appellate Division, A-480-04T5, November 28, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18879

Post-divorce-judgment order that permitted the plaintiff mother to move from Montgomery Township to Manalapan Township and that increased the defendant father’s visitation under the parties’ joint legal custody arrangement by one weekend per month affirmed; the parties’ two children attended Montgomery Township schools, and the mother, who was the parent of primary residence, sought to move closer to her family; the trial court’s analysis and application of the Baures v. Lewis factors to examine the mother’s desire to move and to determine that the move would not harm the children was “unassailable,” even though it exceeded what was legally required because the move was not interstate; under Schulze v. Morris, the Baures factors had to be considered to determine whether custody and parenting time should be modified, and the trial court correctly concluded that the father should have additional visitation.

DOMESTIC VIOLENCE
NEAL v. NEAL
Appellate Division, A-1161-04T1, November 23, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18872

Final domestic violence restraining order against the defendant husband based on an act of harassment on September 16, 2004 reversed; the plaintiff wife testified (1) that the defendant told her on September 5 that he would “burn the house down” and “smash both cars” and (2) that, once the police left after responding to the husband’s call arising from an argument on September 16, he told her, “I could do more harm”; the trial court’s finding that the defendant’s September 16 statement divined meaning from his September 5 statements and therefore constituted harassment under N.J.S.A. 2C:33-4 was undermined by the plaintiff’s failure to take immediate action after the September 5 statements and by the parties’ history of using the remedies provided by the Prevention of Domestic Violence Act to express their anger toward each other.

WORKERS’ COMPENSATION
SCIARRA v. AMERITEMP, INC.
Appellate Division, A-7118-03T5, November 23, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18873

Special Civil Part judgment of $7,386.72 for the plaintiff employer vacated in an action for reimbursement for payments to an injured employee for medical expenses and lost wages; the employee, who allegedly was leased to another company, was sent by that company to the defendant’s premises and was injured when the defendant’s president allegedly yelled at the employee to get off the premises and kicked the ladder on which the employee was standing, causing the employee to fall off the ladder; the employee never filed a workers’ compensation claim; ordinarily, remand would have been required because the Special Civil Part did not make sufficient findings of fact or apply the correct standard; however, the employer lacked standing to bring this action (1) under N.J.S.A. 34:15-40(f) because the action was not brought in the employee’s name and because the employer had not made a written demand on the employee to file a complaint or settle with the defendant before this action was filed and (2) under N.J.S.A. 34:8-70 because there was no evidence that the employer had satisfied the statutory requirements for leasing an employee.

TORTS
PRALL v. HOLTZMAN
Appellate Division, A-3701-04T1, November 23, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18874

Summary judgment for the defendant attorneys affirmed in an action alleging that their fraudulent concealment of a document resulted in summary judgment for their clients in the plaintiff inmate’s earlier action, which alleged that the clients, who were medical service providers, had violated the inmate’s constitutional rights through their deliberate indifference to his medical condition; an electronic medical record produced in the earlier action indicated that an oral surgery consultation had been ordered on October 2, 2001; the document was a handwritten variant of that record that reflected a tentative diagnosis of peritonsillar abscess and stated that the consultation was “a necessity”; the inmate was found semiconscious on October 4, 2001, and the consultation had not yet taken place; summary judgment in the earlier action was nonreviewable and was not subject to collateral attack on its merits through this action; summary judgment in this action was proper because the document was not material to the earlier action and because the inmate was not damaged by the nondisclosure of the document.


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