NEW JERSEY LAWYER

DAILY BRIEFING      12/14/2005


News Briefs

BURLINGTON PROSECUTOR RENOMINATION STALLS
The reappointment of Burlington County Prosecutor Robert D. Bernardi has hit a bump in the Senate Judiciary Committee, which canceled its scheduled interview this week with him. Sen. John H. Adler (D-Camden), the panel’s chairman, said the committee wasn’t ready to consider his nomination by acting Gov. Richard J. Codey. The Philadelphia Inquirer reported Democrats held up the Republican’s nomination because of concern about Bernardi’s handling of a rape and murder case. After Larry Peterson’s 1987 convictions were overturned last summer after new DNA evidence failed to link him to the crime, Bernardi decided to prosecute Peterson again on the same charges, using testimony from original witnesses in the case. 12-13-05

INJURED CHILD GETS $6.6 MILLION SETTLEMENT
Nine years after sustaining a severe head injury caused by a falling sign at a children’s store, a former New Jersey child is getting a $6.6 million settlement. Alexander Arce was 6 weeks old and was in a stroller when a shelf collapsed at The Children’s Place in Quaker Bridge Mall in Lawrence Township. Bruce H. Stern of Stark & Stark, the child’s lawyer, said the shelf caused a 30-inch Plexiglas sign to fall, fracturing the infant’s skull and injuring his brain. The store is paying $5.215 million, the designer of the shelf bracket is contributing $1 million and three other firms are paying the remainder. The boy, who now lives in Texas, has problems with reading and comprehension and is in special education classes. The settlement in Arce v. The Children’s Place was approved by Superior Court Judge F. Patrick McManimon. Donald Chierici Jr. of Chierici, Chierici & Smith in Morristown represented the retailer. Other defendants and their attorneys are: Med Laurel, Joseph Collins, house counsel for the bracket designer’s insurance carrier; PPA Industries a.k.a. Impac International, William R. Hopkin Jr. of Westmont; Retail Planning and Construction, Kenneth R. Russell of North Brunswick; and Nova Millwork, Bruce N. Regenstreich of Red Bank. 12-13-05

ABUSE VICTIMS CLOSE TO GAINING RIGHT TO SUE CHARITIES
Legislation to lift the shield protecting charitable organizations like churches from liability in child sex-abuse cases and give new power to abuse victims in New Jersey is headed for final legislative passage and virtual certain enactment. The measure, S-540, now requiring only Senate concurrence with minor Assembly amendments, would make an exception to the state’s Charitable Immunity Act by allowing claims against nonprofit charitable organizations for the negligent hiring, supervision or retention of any employee or agent who sexually molests minors. The legislation would apply not only prospectively, but retroactively in some cases as well. It would not, though, trump the statute of limitations. Acting Gov. Richard J. Codey is expected to sign the measure. 12-13-05

FED COURT RULES LAWYERS OFF THE HOOK
The nation’s lawyers are not subject to provisions of the Gramm-Leach-Bliley Act that require financial institutions to notify customers on their privacy and information-sharing policies, the U.S. Circuit Court of Appeals for the District of Columbia has ruled. In American Bar Association v. Federal Trade Commission, Judge David B. Sentelle said, “We agree with the District Court that the commission’s attempt to regulate the practice of law under the act fell outside its statutory authority.” He said the commission “apparently assumed — without reasoning — that it could extend its regulatory authority over attorneys … with no other basis than the observation that the act did not provide for an exemption.” 12-13-05

SOLOMON UNANIMOUSLY BACKED FOR JUDGESHIP
The nomination of Lee A. Solomon for the Superior Court in Camden County is expected to receive quick Senate confirmation, now that he’s unanimously cleared the Judiciary Committee. Solomon, a Republican from Haddonfield, has been deputy U.S. attorney for South Jersey, overseeing the Trenton and Camden federal prosecutor’s offices. He is a former Camden County prosecutor and Assembly member. 12-13-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, DECEMBER 13, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, DECEMBER 13, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, DECEMBER 14, 2005.


APPROVED FOR PUBLICATION
CONTRIBUTION
REPUBLIC BUSINESS CREDIT CORP. v. CAMHE-MARCILLE
Appellate Division, A-964-04T2, approved for publication December 13, 2005. (11 pages). Facts-on-Call Order No. 92763

When one co-obligor pays more than her proportionate share of the common liability, she is entitled to contribution from the other co-obligors for the excess payment, and each co-obligor is responsible to the other co-obligors for his or her proportionate share of the excess payment. In this case, the trial court erred by basing the liability of two co-obligors on the amount of the settlement reached by the third co-obligor with the creditor rather than on the amounts of the debt and the excess payment. A co-obligor is not entitled to notice of the settlement, and a co-obligor who benefits from a loan that she has guaranteed is not an accommodation party.

SEARCH AND SEIZURE
STATE v. WILLIAMS
Appellate Division, A-596-03T4, approved for publication December 13, 2005. (27 pages). Facts-on-Call Order No. 92764

The police lacked a reasonable and articulable suspicion when they conducted an investigatory stop based on an anonymous tip that “a black male wearing a black jacket” was selling drugs in a high-crime area. The search that followed the defendant’s flight from the unlawful stop could not be legitimized as incidental to the defendant’s arrest for obstruction because a citizen’s nonviolent flight from an unreasonable search and seizure cannot be criminalized.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
BETHEA v. PINO-BETHEA
Appellate Division, A-1145-04T3, December 13, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18952

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; before the parties’ 2001 accident, which resulted in injuries to the plaintiff’s back and neck, the plaintiff had been involved in a 1988 accident that resulted in a seizure disorder and two detached retinas; the trial court had concluded that the plaintiff satisfied both parts of the Oswin v. Shaw test but that he did not satisfy the comparative analysis requirement under Polk v. Daconceicao; however, Polk did not apply because the plaintiff’s theory was not that the 2001 accident had aggravated or exacerbated a pre-existing injury or condition; rather, the plaintiff sought to recover damages only for his back and neck injuries attributable to the parties’ 2001 accident, and there was no evidence that he had suffered prior back or neck injuries.

VERBAL THRESHOLD
HUI CHEN v. CASTRO
Appellate Division, A-1854-04T2, December 13, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18951

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; the trial court had concluded that the plaintiff did not establish that her injuries were permanent and serious and that they had a serious impact on her life; pursuant to the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, the plaintiff was not required to demonstrate a serious life impact or a serious injury; it was “clear” that the plaintiff had presented sufficient credible objective medical evidence of permanent injuries that were caused by the accident where she supplied MRI studies that indicated a disc herniation, a nerve conduction study and electromyogram that indicated radiculopathy of the lumbar and cervical spine, and the opinions of two physicians as to causation.

VERBAL THRESHOLD
AMENGUAL v. REINOSO-BAUTISTA
Appellate Division, A-3813-04T5, December 13, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18950

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the parties’ automobile accident occurred on May 3, 2002; the plaintiff failed to present sufficient credible objective medical evidence of a permanent injury to satisfy the verbal threshold where she presented only a doctor’s May 7, 2002 observations of muscle spasm and a June 15, 2002 MRI that revealed straightening “of the normal cervical curve consistent with muscular spasm.”

LANDLORD AND TENANT
SHAFFER v. TINY BLESSINGS II
Appellate Division, A-4442-04T5, December 13, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18953

Dismissal based on the entire controversy doctrine of the plaintiff landlord’s third action to dispossess the defendant commercial tenant reversed; the two previous dispossess actions were based on the tenant’s nonpayment of rent and were unsuccessful in the Special Civil Part; the landlord appealed in the second action and filed the third action, which was based on breaches of covenant arising from the tenant’s continued late rent payments and its failure to install separate utility meters as required by the lease; the Special Civil Part erred by applying the entire controversy doctrine to the third action (1) because the purpose of the doctrine was not served by applying it without exception in eviction actions, which are summary in nature, and (2) because there was no evidence that the landlord intentionally withheld claims for possession to gain an unfair advantage over the tenant.

PUBLIC EMPLOYEES
IN RE SCHREPPEL
Appellate Division, A-2813-04T1, December 12, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18947

Final decision of the Board of Trustees of the Police and Firemen’s Retirement System that dismissed for lack of standing the appellant citizen’s complaint — which alleged fraud and mismanagement in the administration of the pension fund — reversed and remanded; the appellant initially wrote to the Board to challenge its approval of one application for accidental disability retirement benefits, but the Board concluded that the appellant lacked standing to challenge the approval; the appellant then filed his complaint, which was transferred by the Law Division to the Board; the complaint “essentially” asked the Board for a declaratory ruling pursuant to the Administrative Procedure Act on the appellant’s allegations of fraud and mismanagement, and remand was required because the Board’s decision did not address those allegations.

CIVIL PROCEDURE
SOUTH JERSEY HEALTH SYSTEM, INC. v. GAROFOLO
Appellate Division, A-717-04T1, December 12, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18948

Denial of the individual defendant’s motion to dismiss the complaint in a breach of contract action and to vacate the default that was entered against him reversed; the individual defendant was the sole owner of the defendant entities, was not a party to the contract between the plaintiff corporation and one defendant entity, and maintained his office in Pennsylvania; as to the motion to dismiss, the plaintiff’s failure to file an affidavit of inquiry before effecting out-of-state service pursuant to Rule 4:4-5(c)(2) did not deprive the Law Division of personal jurisdiction because the defect in service was “merely technical” rather than “substantial”; however, as to the motion to vacate the default, the Law Division abused its discretion because there was “no doubt” that the individual defendant had presented a meritorious defense to the plaintiff’s allegations that he was personally liable for the defendant entities’ contractual obligations.

CIVIL PROCEDURE
SPRING CREEK HOLDING CO., INC. v. SHINNIHON U.S.A. CO., LTD.
Appellate Division, A-318-04T3, December 12, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18945

Denial of the appellants’ motion to intervene under Rule 4:33 in a dispute between two corporations over the control of certain real property affirmed; the individual appellant was a shareholder of the plaintiff, and the corporate appellant was a party to contracts with the plaintiff; the appellants were parties to a suit in federal court that involved most of the same parties and issues as this action; the Appellate Division was “disturbed” by these “apparently duplicative proceedings” and by the appellants’ attempt to intervene “in violation of the spirit of the entire controversy doctrine”; in the federal action, the appellants’ request for a preliminary injunction to bar the defendant from changing the status quo of the property was denied, and the Appellate Division rejected the appellants’ attempt to seek that “very same relief” in this action.

SETTLEMENTS
NEW CENTURY FINANCIAL SERVICES, INC. v. VENNER
Appellate Division, A-1633-04T1, December 12, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18946

Judgment for the plaintiff assignee of the defendant’s credit card account in an action to recover the account balance affirmed; the defendant contended that, after she had received a collection letter and had paid a portion of the minimum payment it demanded, she reached an oral agreement with the assignor’s representative to settle for a sum certain; at trial, the defendant admitted that the representative had disconnected her when she asked for a receipt, and she never paid the sum certain; contrary to the defendant’s argument on appeal, there was “substantial doubt” that a settlement had been reached, and the evidence supported the Special Civil Part’s conclusion that there was no settlement.

EXPUNGEMENT
STATE v. SNYDER
Appellate Division, A-3238-04T5, December 12, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18949

Denial of the defendant’s petition for expungement of his 1981 New Jersey conviction on two counts of burglary affirmed; the defendant asserted that the Law Division erred by considering his 1992 Montana conviction for criminal mischief when it denied his petition; contrary to the defendant’s arguments on appeal, (1) it was irrelevant that, following the completion of his sentence for the Montana conviction, a Montana statute reinstated any civil rights and citizenship rights that he had lost due to the Montana conviction and (2) the Montana statute did not grant him a pardon; there was no reason for New Jersey to ignore the Montana conviction, which Montana still recognizes and which never had been eliminated or erased; therefore, the defendant was disqualified for expungement under N.J.S.A. 2C:52-2 because he had two separate convictions for indictable offenses.


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