NEW JERSEY LAWYER

DAILY BRIEFING      11/09/2005


News Briefs

NEW JERSEY TO CONSIDER EXPANDING FAMILY LEAVE ACT
The Pension and Health Benefits Review Commission is scheduled to consider a proposal to expand the Family Leave Act to domestic partners. Sen. John H. Adler (D-Camden) is sponsoring S-2518, which would provide domestic partners with leave benefits. The law provides a qualified employee family leave of up to 12 weeks during any 24-month period to care for a family member with a serious health condition or care of a newborn. The commission is slated to consider the measure at its Dec. 9 meeting in Trenton. 11-8-05

DOMESTIC VIOLENCE TRAINING OFFERED
Legal Services of New Jersey is offering two-day domestic violence law training for attorneys, paralegals and other legal advocates. The course will run 10 a.m. to 4:30 p.m. Tuesdays, Dec. 6 and 13, at the organization’s offices at 100 Metroplex Drive, Edison. The $30 per day fee will be waived for attorneys who commit to accepting — on a pro bono basis — domestic violence cases referred to them by Legal Services. LSNJ’s Domestic Violence Representation Project provides malpractice insurance and ongoing support and technical assistance. For more information, call Lillian Menendez at (732) 572-9100. The registration deadline is Nov. 30. 11-8-05

WHY VOTE ON A TUESDAY? GOOD QUESTION
This one’s over, but maybe in some election in the future, the balloting could occur on a Saturday. One bipartisan organization that’s trying to make voting easier says there’s no real reason for Tuesday elections other than tradition. “Why Tuesday,” chaired by former Sen. Bill Bradley (D-NJ), former Rep. Jack Kemp (R-NY) and former U.N. Ambassador Andrew Young, released a poll saying about 60 percent of Americans support the idea. The tradition of Tuesday voting was codified in 1845 to allow farmers to travel Mondays to polling places in their county seat without interfering with Sunday worship, the group said. Lengthening workdays, longer commutes and child-care issues make getting to polling places on a weekday increasingly difficult, they said. By the way, there is some Saturday voting in some New Jersey towns for fire district elections in February. Turnouts are abysmal. 11-8-05

FLEECE ON EARTH
Freelance knitters and other similar “workers” who consider themselves independent contractors now are an endangered species and will become extinct in Vermont unless the Supreme Court there overturns a Vermont Employment Security Board decision. The National Federation of Independent Business Legal Foundation has stepped into the fray and filed an amicus brief urging the state’s highest court to save the independent contractors in the Green Mountain state. Bonny Dutton, owner of a small firm, Fleece on Earth, contends the retired women who provide her with woolen apparel are independent contractors. They knit on their own schedules, use their own needles, have no deadlines and knit wherever and whenever they feel like it. Not so, says the employment security board, which ruled they’re employees and not independent contractors. 11-8-05

LESS THAN GREAT EXPECTATIONS
Two women whose expectations were unmet by an internet dating service are entitled to refunds, according to a Manhattan judge who found the service “violated every mandate of the Dating Services Law” except for the three-day “cooling off” right to cancel. Judge Diane S. Lebedeff in Manhattan Civil Court awarded one of the women the $1,000 she had paid for a six-month membership but met no one through the dating service. The judge awarded $3,790 to the other woman who paid for a 54-month membership. The judge said “there was a massive overcharge” and various legal violations. Great Expectations, based in New York, unsuccessfully argued the law didn’t apply to internet dating services. 11-8-05



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 8, 2005
NEW JERSEY COURTS WERE CLOSED ON TUESDAY, NOVEMBER 8, 2005.

NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, NOVEMBER 8, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, NOVEMBER 9, 2005.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, NOVEMBER 8, 2005.

NOT APPROVED FOR PUBLICATION
LAND USE
NEW YORK SMSA LIMITED PARTNERSHIP v. TOWNSHIP OF EAST AMWELL BOARD OF ADJUSTMENT
Appellate Division, A-462-04T3, November 7, 2005, not approved for publication. (29 pages). Facts-on-Call Order No. 18782

Dismissal of the plaintiff telecommunications company’s complaint in lieu of prerogative writs that challenged the defendant Board of Adjustment’s denial of the plaintiff’s application to construct a silo-type cellular tower on property in the municipality’s agricultural district reversed and remanded for the entry of judgment for the plaintiff; the tower required conditional use variances for setback, height, and separation from a historic district; the plaintiff satisfied the positive and negative criteria for variances under N.J.S.A. 40:55D-70d, and substantial evidence supported its application; the Board (1) failed to perform the balancing required by Sica v. Bd. of Adjustment of Twp. of Wall, (2) did not give proper regard to the public interest in the tower, (3) identified detrimental effects that were unsupported by the record, (4) disregarded the testimony of the experts, including its own, and (5) issued a decision that was not supported by substantial evidence.

CONTRACTS
MARGULIES v. CHASE MANHATTAN MORTGAGE CORP.
Appellate Division, A-4087-03T3, November 7, 2005, not approved for publication. (24 pages). Facts-on-Call Order No. 18783

Summary judgment for the defendant lender in a putative class action challenging its account crediting practices affirmed in part, reversed in part, and remanded; contrary to the plaintiff borrower’s arguments on appeal, the trial court properly dismissed his claims (1) for breach of fiduciary duty because there was no “special relationship” between the parties to overcome the presumption against a fiduciary relationship between a borrower and a lender, (2) for breach of the implied covenant of good faith and fair dealing because the lender’s misapplication of payments and improper assessment of late fees for several months did not constitute a breach of the covenant, and (3) for violation of the New Jersey Consumer Fraud Act because the laws of Maryland, where the borrower lived and where the loan was closed, applied under conflict of laws principles; the breach of contract claim was improperly dismissed because the lender did not address that claim in its summary judgment motion and because the borrower had made a prima facie showing on that claim.

ESTATES AND TRUSTS
IN RE ESTATE OF SMITH
Appellate Division, A-6820-03T1, November 7, 2005, not approved for publication. (26 pages). Facts-on-Call Order No. 18784

Order that admitted the decedent’s will to probate and that rejected the appellant son’s allegations against the decedent’s companion affirmed in the son’s action contesting the decedent’s last will and prior wills based on undue influence; the decedent, who died in 2001, moved into his companion’s home in 1992; beginning in 1994, the decedent executed wills that incrementally increased the devise of his estate to his companion and that decreased the devise to his son, who had been fired from the decedent’s tavern for theft; the trial court properly determined (1) that, although the son had made a prima facie showing to support a presumption of undue influence, the companion had overcome that presumption, (2) that the son had not demonstrated any act by the companion to warrant her removal as executrix, and (3) that the companion’s receipt of a salary from the tavern while she was acting as executrix and before the tavern was sold was not improper.

REAL PROPERTY
GILGALLON v. LOWENSTEIN SANDLER PC
Appellate Division, A-1533-04T2, November 7, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18785

Summary judgment for the defendant bank and its attorneys affirmed for the reasons expressed by the trial court in an action alleging conspiracy and fraud and willful misrepresentation in connection with two foreclosures — one in Hudson County and one in Morris County — and in connection with a deficiency judgment against the plaintiff guarantors of a note that was secured by the Hudson County property; the claims were based on the contention that the entire controversy doctrine required the defendants to include the Hudson County action in the Morris County action, which foreclosed on mortgages granted by the plaintiffs; the trial court concluded (1) that res judicata applied to the decision of the trial court in the Hudson County action, which resolved the entire controversy issue against the defendants, (2) that the plaintiffs had not established an underlying unlawful act to support their conspiracy claim, and (3) that the evidence did not support the claim of fraud and willful misrepresentation.

UNEMPLOYMENT COMPENSATION
COSTELLO v. BOARD OF REVIEW
Appellate Division, A-1775-04T1, November 7, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18786

Order of the Board of Review affirming the decision of the Director of the Division of Unemployment Insurance that required the appellant to repay benefits that were paid to her erroneously reversed and remanded for a statement of reasons that addressed N.J.A.C. 12:17-14.2; after her benefits under one application ended, the appellant filed a second application and answered all of the questions “honestly and correctly”; the appellant received $15,183 in benefits under her second application, even though she was ineligible under N.J.S.A. 43:21-4(e)(4) because she had not worked the required amount of time; the Division requested repayment two months after her benefits had ended; remand was required because the evidence indicated that N.J.A.C. 12:17-14.2, which authorizes the Director to waive repayment at his discretion in narrow circumstances, might apply in this matter and because the Director, the Appeal Tribunal, and the Board had not addressed that regulation.

CRIMINAL TRIALS
STATE v. PINTO
Appellate Division, A-1944-04T5, November 7, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18781

Conviction in the Law Division following a trial de novo of the disorderly persons offense of lewdness under N.J.S.A. 2C:14-4a reversed and remanded for entry of an order vacating the judgment of conviction and for entry of a judgment of acquittal; the defendant was observed “vigorously” moving his hand in his front pants pocket near his groin while standing in a store aisle behind two girls who had their backs to him; the evidence did not support a conviction under §2C:14-4a, which requires the commission of “any flagrantly lewd and offensive act,” because there was no physical indicia of masturbation and because the “mere” touching or rubbing of oneself, “however vigorous,” near an intimate body part that is clothed is not “flagrantly lewd,” even if it occurs in public.


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.