NEW JERSEY LAWYER

DAILY BRIEFING      12/15/2005


News Briefs

QUICK CONFIRMATION EXPECTED FOR JUDICIAL NOMINEES
Four lawyers nominated by acting Gov. Richard J. Codey as Superior Court judges could get quick confirmation when the Senate meets Thursday. They are Robert L. Polifroni, a civil litigator specializing in insurance and medical malpractice with Hardin Kundla McKeon Poletto & Polifroni in Springfield; Bonnie J. Mizdol, a general practitioner from Hackensack; Edward A. Jerejian, a civil and criminal litigator with Jerejian & Jerejian in Hackensack; and Kenneth J. Slomienski, a civil practice attorney from Wallington. If approved by the Judiciary Committee in the morning, their names will be submitted to the full Senate in the afternoon.12-14-05

CRASH VICTIM ACCEPTS $3 MILLION CASH SETTLEMENT
A 65-year-old former electrician has agreed to a $3 million cash settlement in a case in which he was standing next to a van parked on the shoulder of Route 3 when a tractor-trailer struck the van — which then struck him. Robert Stevens suffered fractures of both legs, ribs, a shoulder and pelvis, according to his lawyer, Garry R. Salomon of Davis, Saperstein & Salomon in Teaneck. The case, Stevens v. West Motor Freight, was handled by Essex County Judge Jared D. Honigfeld. The registered owner of the tractor-trailer, West Motor Freight, was represented by Jeffrey M. Kadish of Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski in Livingston. 12-14-05

APPEALS COURT OKS SEC POWER OVER BROKERAGE SANCTIONS
The U.S. Circuit Court of Appeals for the District of Columbia has ruled the National Association of Securities Dealers (NASD) may not challenge the Securities and Exchange Commission (SEC) when it reverses an NASD disciplinary decision. In National Association of Securities Dealers v. Securities and Exchange Commission, Circuit Judge Harry T. Edwards said the NASD did not qualify under the Securities Exchange Act as a “person aggrieved” entitled to contest such an action by the SEC. In the case, the SEC reversed a determination by the National Adjudicatory Council of the NASD disciplining an NASD member and its owner. The underlying case involved Amr Elgindy, former owner of Key West Securities, who was accused of manipulating short-selling in shares of a company that manufactures safety mechanisms in firearms. 12-14-05

IT’S A DYING SHAME
The mayor of a Brazilian farming community is so frustrated with environmental regulations barring cremation and forbidding a new cemetery that he’s come up with a unique, if not bizarre, proposed law to address a huge problem — what’s a town of 28,000 people to do when it runs out of room to bury its dead. So the mayor is asking the town council to make dying illegal. Mayor Roberto Pereira da Silva of Biritiba Mirim, an area of rich farmland that supplies fruits and vegetables for the country’s biggest city, San Paulo, drafted the measure that calls on residents to “take good care of your health in order not to die.” It warns violators they “will be held responsible for their acts.” It carries no penalty. “Of course the bill is laughable, unconstitutional and will never be approved,” said Gilson Soares de Campos, an aide to the mayor. “But can you think of a better marketing strategy … to persuade the government to modify the environmental legislation that is barring us from building a new cemetery?” Last month, the remains of 20 residents were placed in a single crypt that is expected to be full in six months. 12-14-05

JUDGE GETS CREATIVE WITH SENTENCES
A local judge in Ohio loves dreaming up and meting out unusual sentences. Judge Mike Cicconetti gives offenders a choice: jail or a creative sentence. He has ordered a man caught with a loaded gun to view corpses at a morgue. Noisy neighbors were sentenced to listen to classical music instead of rock or spend a day of silence in the woods. A woman caught for abandoning 35 kittens in a forest was ordered to spend a night in the woods, but it was so cold she gave up and landed back in a warm jail cell. “What could be better than shoveling snow for senior citizens?” he asks. Cicconetti said such community service benefits everyone since it even spares the daily incarceration cost of $93. 12-14-05



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, WEDNESDAY, DECEMBER 14, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, DECEMBER 14, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, DECEMBER 15, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, DECEMBER 14, 2005.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
ALONSO v. MAHABIR
Appellate Division, A-1332-04T2, December 14, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18959

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; applying Oswin v. Shaw, the trial court had concluded that the plaintiff’s credible objective medical evidence concerning her knee injury was sufficient to satisfy the first prong but that her evidence of her injury’s subjective impact on her life was insufficient to satisfy the second prong; 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 AICRA does not contain a serious-impact requirement.

PREMISES LIABILITY
WHITMORE v. BEST BUY STORES
Appellate Division, A-3756-04T3, December 14, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18962

Summary judgment for the defendant store on its cross-claim for indemnification and a defense pursuant to its contract with the defendant general contractor reversed and remanded in an action arising from an October 7, 2002 accident at the store’s premises involving the plaintiff employee of a communications contractor; the actual date of the general contractor’s turnover of the premises to the store following the completion of all work was pivotal in determining which defendant was liable; the general contractor’s supervisor testified that turnover occurred before the accident and after the temporary certificate of occupancy was issued; however, the certificate was dated October 31, 2002, and, due to incomplete discovery, it was unknown whether the store’s employees would verify that turnover had occurred before the accident; because there was a genuine factual dispute as to the turnover date, the trial court erred by concluding that turnover occurred after the accident.

APPELLATE PROCEDURE
VAUGHN v. CONTEMPO MEDICAL, INC.
Appellate Division, A-2334-04T1, December 14, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18960

Appeal from a Special Civil Part order that “adjudged” that the plaintiff executor’s proofs were “insufficient to support a judgment award” in an action alleging breach of an express warranty by the defendant wheelchair dealer dismissed; the order stated that the plaintiff had failed to provide proof that there was a warranty and that the decedent’s wheelchair had malfunctioned during the warranty period, but the “language of the order” did not dismiss the complaint and appeared to grant the plaintiff the right to produce more evidence to support his claim; the Appellate Division concluded that the order was interlocutory and that there were no extraordinary circumstances to warrant granting leave to appeal under Rule 2:5-6.

REAL PROPERTY
COGEN v. VELAZQUEZ
Appellate Division, A-2625-04T5, December 14, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18961

Denial of the motion of the plaintiff tenant in common for the reopening of a partition action to present supplementary proofs or for reconsideration of a partition order reversed and remanded; the plaintiff alleged (1) that the parties had agreed that the defendant tenant in common would live on the property that they purchased together and would make the mortgage payments and (2) that the mortgage payments were not timely made; the defendant was not notified of a proof hearing at which the plaintiff failed to present evidence to establish the market value of the defendant’s possessory interest; following the proof hearing, the trial court ordered that the property be sold, that the profits be split evenly, and that the defendant be reimbursed for half of the mortgage payments that she had made; the plaintiff challenged the reimbursement provision; in light of the relief sought by the plaintiff and the lack of notice to the defendant, the trial court erred by conducting the proof hearing and by denying the plaintiff’s later request for a dismissal without prejudice because neither party was entitled to “an unfair windfall” due to the plaintiff’s lack of evidence at the proof hearing.

HUSBAND AND WIFE
JAGTIANI v. JAGTIANI
Appellate Division, A-1226-04T3, December 13, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18956

Post-divorce-judgment order that granted supplemental relief to the plaintiff ex-husband by equitably distributing the marital home to compensate him for the home’s increase in value during the post-judgment period that the defendant ex-wife retained possession affirmed; a November 2002 amended judgment of divorce permitted the ex-wife to remain in the home until the parties’ oldest child completed high school if she refinanced the home within two years and compensated the ex-husband for his share; otherwise, the home was to be sold; more than two years later, on the ex-husband’s motion to enforce the amended judgment, the trial court properly concluded that the home should be reappraised to determine a value that was “more realistic” than the value that the parties had stipulated to at their divorce trial; “simple equity” required the parties to share in any increase in value that was attributable to market factors.

PARENT AND CHILD
WILKINSON v. WILKINSON
Appellate Division, A-6432-03T2, December 13, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18954

Order entered on remand that denied the plaintiff mother’s request for post-judgment interest on child support arrears arising from a 1979 order and for attorney’s fees reversed and remanded; as to post-judgment interest, the trial court “clearly erred” by denying the request based on fundamental principles of “fairness and equity” (1) because it misconceived the reason for the remand, which “emphatically was not to endorse the trial court’s earlier reasoning,” and (2) because it provided a “wholly inadequate basis” for deviating from the rule favoring the grant of post-judgment interest; as to attorney’s fees, the trial court mistakenly exercised its discretion by denying the request because the mother had not received support, because it cost her money to enforce the judgment, and because she had to proceed with an appeal that vindicated her position.

PARENT AND CHILD
PUGMIRE v. PUGMIRE
Appellate Division, A-641-04T2, December 13, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18955

Post-divorce-judgment order that denied the defendant father’s motion to reduce his child support obligation affirmed; the father claimed that there was a change of circumstances based on his alleged decrease in income and on the plaintiff mother’s ability to earn income due to her graduation from nursing school; contrary to the father’s arguments on appeal, the trial court did not err (1) by including his tax deductions for “substantial legal and professional expenses” in his gross income after he failed to demonstrate that the deductions were appropriate, (2) by declining to impute income to the mother in light of her reasons for working only part time, which included her ability to spend “substantial time” with her children and the elimination of the need for work-related day care, and (3) by failing to conduct a plenary hearing after the father did not take the opportunity to explain his “suspicious deductions” at the motion hearing.

PARENT AND CHILD
BALE v. CANTELLA
Appellate Division, A-1744-04T2, December 13, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 18957

Post-divorce-judgment order that denied the defendant father’s motion for a downward modification of his child support obligation affirmed substantially for the reasons expressed by the Family Part in its oral decision; the father contended on appeal that the Family Part had committed reversible error (1) by deviating from its “customary motion practice” without providing him with prior notice and (2) by granting oral requests by the plaintiff mother’s attorney that were “based on matters not before the court”; however, those contentions lacked merit.

PARENT AND CHILD
DIVISION OF YOUTH AND FAMILY SERVICES v. M.S.
Appellate Division, A-4537-04T4, December 13, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18958

Family Part judgment that terminated the parental rights of the defendant mother to two of her children affirmed; as to the younger child, the mother had been convicted of aggravated manslaughter arising from the death of his twin and of endangering the welfare of both twins; as to the older child, although he had escaped physical abuse, he had experienced “significant psychological injuries” from observing domestic violence and from the physical abuse of the twins; contrary to the mother’s argument on appeal, the record supported the Family Part’s findings and conclusions, and each of the four criteria under N.J.S.A. 30:4C-15.1a was satisfied.


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.