NEW JERSEY LAWYER

DAILY BRIEFING      11/08/2005


News Briefs

AG APPEALS RULING BLOCKING DWI PROSECUTIONS
The Attorney General’s Office has appealed a Superior Court judge’s ruling that has blocked prosecution of drunken driving cases in Middlesex County pending a hearing to determine the scientific reliability of the state’s new breath-test machines. Roger Shatzkin, a spokesman for the AG’s office, said the state is seeking to overturn Judge Jane B. Cantor’s decision last month in State v. Chun. Cantor refused to accept the state’s request that she recognize and concur with an earlier ruling by a Camden County judge that the Alcotest 7110 is scientifically reliable. Cantor stayed the prosecution of DWI cases in all Middlesex County municipal courts until she could hold a hearing on whether the machines and their results are sound. She disagreed with Camden County Assignment Judge Francis J. Orlando, who ruled in State v. Foley that Alcotest is reliable under State v. U.S. 11-7-05

LEGAL PIONEER RUTH RABSTEIN DIES
Ruth Rabstein Pellettieri, 92, a pioneering woman in New Jersey legal circles and co-counsel in one of the classic civil rights cases in the mid 20th century, died Nov. 4. A 1934 graduate of Newark Law School, she ranked second in her class overall and was only one of seven women in the class. After the reluctance to accept female lawyers at that time made it hard to secure a job, she returned to Trenton where a young attorney, George Pellettieri, gave her the opportunity to fulfill her mandatory clerkship. The firm became Pellettieri and Rabstein, now Pellettieri Rabstein & Altman. Together, the husband and wife team became a formidable presence in Trenton area legal circles and by the 1960s, she was one of the state’s most-prominent plaintiffs workers compensation attorneys. 11-7-05

RECORD $22.6 MILLION FOR MOLD SETTLEMENTS
A Manhattan Beach, Calif., family has reached a $22.6 million settlement against a lumber company and other defendants involved in constructing their house. The parents of Kellen Gorman, now 5, said he became sick and eventually brain damaged because of toxic mold from improperly stored framing materials. Kellen now needs 24-hour care. The lumber company said it was not admitting liability, and that it settled only because the judge barred more than half its experts. In New Jersey, several pieces of legislation ranging from mandatory inspection to licensing procedures have been introduced, but none has even gotten a committee review, much less a floor vote. 11-7-05

TEEN SETTLES FOR $117,500 OVER WEBSITE ‘GUESTBOOK’ PUNISHMENT
An Oceanport 16-year-old has settled for $117,500 with his former middle school over his being punished for someone else’s posting on a website he launched in April 2003. Ryan Dwyer’s site included a “guestbook,” inviting others to comment about the school. School officials, who said they found anti-Semitic remarks posted in the guestbook, suspended him for one week, benched him from the baseball team for one month, and forbade him from taking a class trip and honors placement tests. The settlement, which follows an April 2005 decision in U.S. District Court that the school violated the student’s First Amendment rights, was accompanied by an apology from the school district. Dwyer was represented by American Civil Liberties Union of New Jersey volunteer attorney Grayson Barber of Princeton and the Oceanport School District by R. Armen McOmber of McOmber & McOmber in Red Bank. 11-7-05

THE TAX MAN GIVETH?
Anyone in business knows the bite of taxes. But in Amsterdam, the Dutch finance minister is bemoaning an unusual way some companies are investing. They’ve discovered they can earn easy money simply by overpaying their taxes and getting a refund, plus 5 percent interest, which is more than commercial banks offer. Finance Minister Gerrit Zalm complains on his weblog that some businesses happily accept and overpay a tax estimate that’s too high; they file a revised estimate if they need access to the funds they’ve parked with the government. Zalm wants to slam the brakes on this practice. While the overpayments have resulted in the government having to borrow less, the 3.2 percent interest rate it saves is less than the 5 percent it’s paying to businesses exploiting the loophole. 11-7-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, NOVEMBER 7, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, NOVEMBER 7, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, NOVEMBER 9, 2005.

NEW JERSEY COURTS WILL BE CLOSED ON TUESDAY, NOVEMBER 8, 2005, AND NO OPINIONS WILL BE RELEASED.



APPROVED FOR PUBLICATION
DOMESTIC VIOLENCE
PAZIENZA v. CAMARATA
Appellate Division, A-2873-04T5, approved for publication November 7, 2005. (22 pages). Facts-on-Call Order No. 92720

A defendant in a domestic violence proceeding should have access to the second and third pages of the Confidential Information Sheet that the victim completed during the intake process. Unlike the first page, which contains personal and identifying information, the second and third pages contain information about the alleged incident of domestic violence and prior history. That information does not require confidentiality, and withholding it from the defendant could adversely affect his ability to defend the charge.

UNEMPLOYMENT COMPENSATION
McCOY v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Appellate Division, A-1552-04T5, approved for publication November 7, 2005. (6 pages). Facts-on-Call Order No. 92719

A full-time employee of a temporary nursing agency who decides to accelerate her schooling by taking a full semester’s worth of college credits cannot collect partial unemployment benefits after the agency could not offer her full-time hours that conformed with her school and study schedule.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
YOUSSEF v. PROCOPIO
Appellate Division, A-204-04T1, November 7, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18777

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 concluded that the plaintiff had demonstrated sufficient objective evidence of her injuries to satisfy the first prong of the Oswin v. Shaw test but that she had not satisfied the second Oswin prong because she had failed to demonstrate that her injuries had a serious impact on her life; reversal and remand were required in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, which held that §39:6A-8a does not contain a serious-life-impact standard and that a plaintiff must prove only that she suffered an injury described in §39:6A-8a to recover noneconomic damages.

HUSBAND AND WIFE
CATARELLA v. CATARELLA
Appellate Division, A-6879-03T1, November 7, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18779

Denial of the plaintiff ex-wife’s motion to vacate a post-divorce-judgment order that terminated her rights to permanent alimony, to the defendant ex-husband’s pension, and to a life insurance policy affirmed in part, reversed in part, and remanded; the order was entered on May 9, 2003 after the ex-wife failed to oppose the ex-husband’s motion for relief based on changed circumstances, and she did not move to vacate the order until May 7, 2004; the trial court did not err by finding that the ex-wife’s delay was unreasonable under Rule 4:50-2 and by denying retroactive relief; however, Rule 4:50-2 may be “judiciously administered” to achieve a just result, and denying prospective relief to render the May 9 order “forever inviolate” was an “inequitable result” under the circumstances of this “unusual” case.

MOTOR VEHICLES
HILL v. NEW JERSEY MOTOR VEHICLE COMMISSION
Appellate Division, A-1676-04T2, November 7, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18780

Denial by the New Jersey Motor Vehicle Commission of the request for an exemption on religious grounds from the Digitized Driver’s License Law, N.J.S.A. 39:3-10f, by the plaintiff member of the Church of the Living God Pillar and Ground of the Truth affirmed; under §39:3-10f, driver’s licenses must have a “digitized color picture” of the licensee, but the plaintiff refused to have his picture taken for his driver’s license renewal because his Church prohibits “graven images,” such as photographs; contrary to the plaintiff’s argument on appeal, §39:3-10f is not subject to strict scrutiny because it is a neutral law of general application that does not violate the Free Exercise Clause of the First Amendment, the New Jersey Constitution, or the fundamental right to interstate travel and because it does not create a “system of individualized exemptions” under the case law.

APPELLATE PROCEDURE
VENTURA v. QUEZADA
Appellate Division, A-2414-04T2, November 4, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18774

Appeal by the defendant from a final judgment for the plaintiff following the entry of a consent order in a dispute between two partners in a real estate venture dismissed; after the parties filed actions against each other, their attorneys submitted the consent order, which directed the defendant to sell a building to the plaintiff at a specified price; the defendant challenged the consent order on appeal, arguing that she had not authorized her attorney to agree to the consent order; however, the defendant had not raised that issue below on a formal motion, and, as a result, there was neither a record nor findings and conclusions for the Appellate Division to review; dismissal was required because vacation of an order must be sought in the trial court under Rule 4:50-1 and no such motion was made in this case and because a party may not appeal from a consent order to challenge its substantive provisions.

CONTRACTS
ANGERAME v. BAILEY
Appellate Division, A-3804-04T1, November 4, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18775

Special Civil Part judgment in the amount of $2,020 for the plaintiff after a trial in an action for payment for horseshoeing services affirmed; procedurally, the Special Civil Part did not err by sua sponte vacating the dismissal and reinstating the complaint after the plaintiff arrived about an hour late for trial because he had gotten lost and by granting the plaintiff’s motion to reinstate his complaint after he did not appear at a later trial date; substantively, the evidence was sufficient to support the judgment, which was based on findings (1) that the plaintiff had testified credibly, had adequately explained his charges, and had acted reasonably by following the shoeing instructions issued by the defendant’s son and (2) that the defendant had to pay for services provided to his son’s horse because the defendant had made payments in the past for services provided to that horse.

HUSBAND AND WIFE
DONAHUE v. DONAHUE
Appellate Division, A-6703-02T3, November 4, 2005, not approved for publication. (38 pages). Facts-on-Call Order No. 18776

Provisions of a judgment of divorce concerning child support and equitable distribution and order that awarded attorney’s fees to the plaintiff ex-wife but that denied the defendant ex-husband’s request for fees affirmed in part, modified in part, and remanded; as to child support, the record supported the finding that the defendant ex-husband was voluntarily underemployed, and the trial judge did not err by imputing income to the ex-husband and by not imputing income to the ex-wife; as to equitable distribution, the judge’s reasoning and conclusions concerning the value of the marital home were well-supported, but remand was necessary for the limited purpose of completing the equitable distribution of the home and other marital assets; as to attorney’s fees, the judge did not abuse her discretion; as to the ex-husband’s claim that the judge was biased, the judge’s “increasing exasperation” with the ex-husband’s attorney and her credibility findings as to the ex-husband did not establish a bias against the ex-husband or an appearance of bias that required disqualification.

PARENT AND CHILD
CONDRY v. TRIPP
Appellate Division, A-1025-04T1, November 4, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18773

Order denying the plaintiff father’s motion that sought joint legal custody of the parties’ 8-year-old son, a decrease in his child support obligation, and weekly overnight visitation affirmed in part and remanded in part; as to custody, the father failed to demonstrate a prima facie basis for an evidentiary hearing on whether the award of custody to the defendant mother in the parties’ final judgment of divorce should be modified; as to child support, the trial court properly exercised its discretion by denying relief to the father due to his failure to make a prima facie showing of changed circumstances; as to visitation, a plenary hearing was required in light of the father’s assertion that the mother had prevented him from seeing his son for six years.


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