NEW JERSEY LAWYER

DAILY BRIEFING      11/07/2005


News Briefs

SECOND NJ SPOT ON CIRCUIT WOULD OPEN WITH CONFIRMATION OF ALITO
The 3rd U.S. Circuit Court of Appeals would have two, yes two, spots for New Jerseyans if the Senate were to approve the nomination of Samuel A. Alito Jr. to the U.S. Supreme Court. Veteran observers can’t remember that happening before. More names may fall from the trees, but the leading candidates remain Appellate Division Judge Helen E. Hoens and Michael A. Chagares of Cole, Schotz, Meisel, Forman & Leonard in Hackensack, former Civil Division chief in the U.S. Attorney’s Office in New Jersey. They are helped by the fact that White House counsel Harriet Miers, who vetted them, did not make it to the Supreme Court. For full details on the openings at the circuit court, see the Nov. 7 edition of New Jersey Lawyer. 11-4-05

NJ FEDERAL BAR GROUP SAYS ALITO’S THE MAN
They’ve appeared before him, they’ve worked with him, they know him or they know people who know him. The result? The officers and members of the board of trustees of the Association of the Federal Bar of the State of New Jersey are urging the Senate to confirm Samuel A. Alito Jr. as a justice of the U.S. Supreme Court. In a formal resolution, the group cited his “intellectual qualifications, educational background, honesty, integrity and experience” as U.S. attorney for New Jersey and judge on the 3rd U.S. Circuit Court of Appeals. The association includes practitioners in the fields of civil and criminal law in the federal courts. 11-4-05

QUICK, WHO’S THE LT. GOV. OF NY? NJ MAY OFFER SAME TRIVIA
New Jersey voters will decide whether the state needs a lieutenant governor when they go to the polls on Tuesday. If approved, New Jersey would be voting for a governor-in-waiting in the 2009 election. The lieutenant governor would not have a separate ballot line but would be voted on with the gubernatorial candidate. The No. 2 would become the guv if a vacancy develops. Currently, the Senate president takes over. Meanwhile, another ballot question asks whether the state should expand the use of certain dedicated tax revenues to fund air pollution control and administrative costs of an environmental program dealing with underground storage tanks. By the way, Mary O. Donohue — not exactly a household name — will be watching the vote here from her Albany office. Yes, she’s the lieutenant governor of the Empire State. 11-4-05

WASHINGTON COURT BACKS LESBIAN PARENT RIGHTS
Washington state’s Supreme Court has added to the growing list of state cases supporting the rights and responsibilities of same-sex parents. The estranged partner sued after the birth mother stopped visits to their daughter. The court stated, “We hold that our common law recognizes the status of de facto parents and places them in parity with biological and adoptive parents in our state.” The circumstances of the case are similar to those in one decided by the New Jersey Supreme Court in 2000. In V.C. v. M.J.B., the New Jersey high court held the estranged member of a lesbian couple had the same custody rights as though she were a natural parent. Other state courts, such as those in California and Pennsylvania, have made similar rulings. 11-4-05

AMTRAK SETTLES BIAS SUIT
A New York state resident has won a settlement from Amtrak after he charged racial bias on a 2000 trip from New York to Florida. David Parker, who is black, said that Amtrak conductor Richard Brewer, who is white, ordered Parker and the two children traveling with him to check their bags rather than bring them into the passenger compartment. After he boarded the train, Parker saw that white passengers were allowed to bring their bags on board. Parker’s attorney said Brewer had been the target of 10 discrimination complaints and had never been disciplined. Amtrak officials said they’ve already put into practice new “zero tolerance” policies to prevent such incidents in the future. Brewer no longer works for Amtrak. The settlement amount was undisclosed. 11-4-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, NOVEMBER 4, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, NOVEMBER 4, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, NOVEMBER 7, 2005.


APPROVED FOR PUBLICATION
EMPLOYMENT LAW
ZUBRYCKY v. ASA APPLE, INC.
Appellate Division, A-416-04T3, approved for publication November 4, 2005. (9 pages). Facts-on-Call Order No. 92718

Based on the standards applied in decisions under the Law Against Discrimination, an employer’s refusal to pay overtime mandated by statute despite repeated complaints by the employee does not constitute constructive discharge under the Conscientious Employee Protection Act. However, the employee did have a valid claim for unemployment benefits because the applicable standard — that the employee’s resignation be for good cause attributable to the work — is less demanding than the constructive discharge standard.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
MAROTTA v. ABRAHAMSEN
Appellate Division, A-1726-04T1, November 4, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18771

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the trial court had concluded that the plaintiff failed to meet both the objective and the subjective prongs under Oswin v. Shaw; however, under the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, the subjective prong no longer applies; even after DiProspero and Serrano, the plaintiff did not overcome the verbal threshold (1) because none of the plaintiff’s experts explained what her conditions were and why they were permanent or linked them to the automobile accident and (2) because the plaintiff’s assertion that she was young and that she never had any neck or back pain before the accident was insufficient to raise an issue of material fact that was sufficient to withstand summary judgment.

PREMISES LIABILITY
NORIEGA v. TMC PROPERTIES, LLC
Appellate Division, A-1720-04T1, November 4, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18769

Summary judgment for the defendant landlord in a premises liability action affirmed; the plaintiff fell on a flight of interior concrete stairs after a friction tread that had been affixed to a stair came off when she stepped on it; the landlord had leased its entire building to the plaintiff’s employer and therefore was not liable under McBride v. Port Auth. of N.Y. and N.J.; the plaintiff could not distinguish McBride based on the terms of the lease because the friction treads were not “structural changes or capital improvements” for which the landlord retained responsibility; the trial court correctly concluded that tending to the friction treads constituted ordinary repair and maintenance for which the employer was responsible.

EVIDENCE
BAGLIVO v. VENTROY ASSOCIATES
Appellate Division, A-6898-03T3, November 4, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18772

Denial of the defendant’s motion for partial summary judgment on the plaintiffs’ claim to recover the reasonable value of their construction work affirmed; the defendant alleged that the plaintiffs had not produced reliable expert evidence establishing the fair value of their services because the deposition testimony of the plaintiff proprietor was inadequate; although the proprietor had not prepared adequately for his deposition, there was no evidence that he had been asked to review the billing files at issue, and the defendant could have adjourned the deposition to permit that review if it was dissatisfied with the proprietor’s answers; the plaintiffs could not be faulted for failing to provide an expert report in response to the defendant’s motion for summary judgment because nothing in the record indicated that the defendant had made a demand for one under Rule 4:10-2(d), and there was no basis for reversal because there was “substantial evidence” that the proprietor had the general ability to provide expert testimony at trial.

LAND USE
CHELSEA NEIGHBORHOOD ASSOCIATION v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF ATLANTIC CITY
Appellate Division, A-3282-04T3, November 4, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18770

Dismissal of the plaintiff community organization’s complaint in lieu of prerogative writs that challenged the defendant Zoning Board’s resolution that authorized the construction of a billboard by the defendant outdoor advertising company affirmed; the trial court correctly concluded that the organization lacked standing (1) because the organization’s membership consisted of individuals who lived in areas that were “virtually unaffected” by the company’s proposal, (2) because the organization therefore had no greater stake in the outcome of the proceedings than the general public, (3) because the organization could not identify any specific deficiencies in the company’s application or the Board’s approval, and (4) because the organization’s “mere ‘philosophical’ disagreement” with the application was insufficient as a matter of law to confer standing on the organization.

ARBITRATION
FRAMAN MECHANICAL, INC. v. LAKELAND REGIONAL HIGH SCHOOL BOARD OF EDUCATION
Appellate Division, A-4062-04T1, November 3, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18767

Order denying the plaintiff HVAC subcontractor’s motion to compel the defendant Board of Education to arbitrate in accordance with an arbitration clause contained in certain form contracts from the American Institute of Architects affirmed in a dispute arising from the Board’s construction project; because the subcontractor did not initially bring a suit to compel arbitration and because its complaint sought substantive resolution of its claims, the subcontractor had waived any right to arbitration that it might have had; furthermore, the defendant architect was not a party to any arbitration agreement between the subcontractor and the Board; therefore, to the extent that the architect’s involvement likely would be an issue in the dispute between the subcontractor and the Board, it was “hardly ideal” for the resolution of the interrelated disputes to be divided between an arbitration forum and a court.

EDUCATION
EISENBERG v. FORT LEE BOARD OF EDUCATION
Appellate Division, A-233-04T3, November 3, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18766

Summary judgment for the defendant Board of Education and the defendant administrative officers on the complaint of the plaintiff teacher whose contract was not renewed affirmed substantially for the reasons expressed by the trial court; the plaintiff was one of five nontenured teachers whose contracts were not renewed; the Board cited deficiencies in the plaintiff’s job performance, then later rehired three of the nontenured teachers; contrary to the plaintiff’s arguments on appeal, the trial court (1) correctly analyzed the plaintiff’s age and religious discrimination claims under the Law Against Discrimination, (2) did not err by dismissing the claims of breach of contract and breach of the covenant of good faith and fair dealing in light of the plaintiff’s failure to exhaust his administrative remedies and the Commissioner of Education’s “primary jurisdiction,” and (3) did not misunderstand the plaintiff’s spoliation of evidence argument before rejecting it.

TAXATION
TOWNSHIP OF KINGWOOD v. BLOCK 1.02, LOT 4
Appellate Division, A-1581-04T1, November 3, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18768

Order in an in rem tax foreclosure action denying the property owner’s motion to vacate a final judgment of foreclosure based on improper service of process and on equitable grounds affirmed; as to service of process, the property owner was properly served through his “caretaker/personal representative” pursuant to Rule 4:4-4(4), and the plaintiff municipality properly published notice of the in rem foreclosure; as to the equitable grounds, the trial court properly rejected the property owner’s arguments (1) that it was “necessary and appropriate” to vacate the judgment because of equitable considerations, including his good-faith attempt to pay off the municipality’s lien and his “substantial equity” in the property and (2) that the municipality should be compelled to accept his redemption money under the doctrine of equitable estoppel.


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