NEW JERSEY LAWYER

DAILY BRIEFING      12/19/2005


News Briefs

COLE, SCHOTZ CONTINUES ITS EXPANSION
Cole, Schotz, Meisel, Forman & Leonard will ring in the New Year by bringing in another firm — Angel & Frankel of New York City. This is the second merger in three months for the Hackensack-based firm and establishes its New York City office at 460 Park Ave. This latest move brings the firm’s total attorneys to 110. Although Angel & Frankel’s focus is complex bankruptcy and insolvency, the New York Cole, Schotz office will be full-service. Several attorneys from the New Jersey office will move in to the Big Apple digs, including Leo Leyva, who will be resident partner and chair the litigation practice there. In September, Cole, Schotz merged with the Hackensack firm Sternlieb & Dowd, which focused on real estate, corporate, construction litigation, commercial litigation and employment law. 12-16-05

FORMER AT&T MANAGER WINS AGE-DISCRIMINATION VERDICT
A jury in Middlesex County has awarded $950,000 to a former AT&T manager who claimed he was terminated because of his age. Tom Hughes had worked for the company 31 years when he was notified he would be out of a job. He was 50 years old at the time. AT&T, though, kept managers aged 40, 35 and 34, the latter having been in the position only two months when Hughes was terminated. The plaintiff in Hughes v. AT&T was represented by Bruce P. McMoran and Michael F. O’Connor of McMoran, O’Connor & Bramley in Tinton Falls. Defense attorneys where Teresa A. Kelly and Kristine J. Feher of Pitney Hardin in Morristown. Judge Mathias E. Rodriguez presided. 12-16-05

STANDARDIZED ID CARDS FOR NJ LAWYERS
New Jersey lawyers hurrying to the courtroom to avoid a scolding from the judge for being late won’t have to cool their heels anymore while sheriff’s deputies scrutinize various forms of identification. Instead, they can take advantage of a standardized ID card those same sheriff’s deputies can help them obtain. Last week, New Jersey State Bar Association President Stuart A. Hoberman and Attorney General Peter C. Harvey announced the new cards, which will be available soon from any sheriff’s office. “Lawyers across the state will benefit from a uniform ID card,” Hoberman said, adding the cards “will not compromise security but enhance it by making the screening process done by sheriff’s officers more efficient.” Most county bar associations issue cards now, but they differ in design and content. That disparity apparently was becoming a hassle at times for attorneys who appear in more than one county as well as for deputies forced to cope with anxious lawyers. See the full story in the Dec. 19 New Jersey Lawyer. 12-16-05

SNUBBED IN WASHINGTON, BRUCE IS THE BOSS IN TRENTON
Sometimes state legislatures step in where federal lawmakers fail to act. In that spirit, the New Jersey Senate has passed a resolution honoring native son Bruce Springsteen on the 30-year anniversary of his breakthrough Born to Run album. Sen. Raymond Lesniak (D-Union) sponsored a resolution after the Republican-controlled U.S. Senate refused to consider a similar resolution proposed by New Jersey’s federal senators, Frank Lautenberg and now Gov.-elect Jon S. Corzine. Springsteen, who has roots in Long Branch and Freehold and lives in Rumson, stepped away from the political sidelines for the first time and got politically involved in the 2004 presidential election, lending support to Democrat John Kerry. Springsteen has a big fan in Corzine. The incoming governor attended the rocker’s first concert in Trenton in decades at the Sovereign Bank Arena recently and has said he’d enjoy having Bruce perform during next month’s inauguration. 12-16-05

WOMEN WHO BLOCK COURT ENTRANCE TO PRAY GET PROBATION
Two women who blocked a Michigan courtroom entryway by lying on the floor and praying have been placed on probation. But they’re expressing defiance and lack of remorse, vowing to do it again, if so moved. Brittany L. Jordan and Rachel S. Jacob received one year’s probation and each ordered to pay $470 in court fees. Magistrate Michael Osaer of 41A District Court in Macomb County imposed the sentence after the women were arrested three times for refusing to move while praying in public. 12-16-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, DECEMBER 16, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, DECEMBER 16, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, DECEMBER 19, 2005.


APPROVED FOR PUBLICATION
REAL PROPERTY
SIDDONS v. COOK
Appellate Division, A-1835-04T1, approved for publication December 16, 2005. (16 pages). Facts-on-Call Order No. 92768

Where the defendant condominium association was on notice of defective dishwasher hoses in three condominium units before the plaintiff’s unit was flooded due to a broken dishwasher hose in the unit above hers, the association had a duty to warn unit owners of the potential flood hazard, even though the association had no duty to maintain or repair dishwasher hoses because they were not common elements.

SEARCH AND SEIZURE
STATE v. DANIELS
Appellate Division, A-7023-03T4, approved for publication December 16, 2005. (5 pages). Facts-on-Call Order No. 92769

The trial court properly denied the defendant’s motion to suppress the heroin that was seized from the interior of her automobile, which was parked in the visitors’ lot at the Garden State Youth Correctional Facility. There was no reason to exclude a visitor’s vehicle from the property that is subject to a search under the Department of Corrections protocol that was upheld in Jackson v. Dept. of Corr.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
SILVER v. FERRETTI
Appellate Division, A-5107-04T1, December 16, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18972

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 concluded that the plaintiff’s injuries were not “sufficiently serious” to satisfy the verbal threshold, and it therefore did not reach the issue of whether the plaintiff’s injuries had a serious impact on her life; the Appellate Division reversed and remanded (1) because the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano held that AICRA does not require a plaintiff to demonstrate a serious life impact or a serious injury and (2) because, if a jury found that the plaintiff’s doctors were credible, it could reasonably conclude that she had suffered permanent injuries as a result of the parties’ accident.

PREMISES LIABILITY
AIME v. LOBRACE
Appellate Division, A-3168-04T5, December 16, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18974

Summary judgment for the defendant corporation and its principal in a personal injury action affirmed substantially for the reasons expressed by the trial court; the plaintiff fell on a “dilapidated” sidewalk that abutted the corporation’s property, which was an unoccupied single-family residence; although owners of commercial property have a duty under Stewart v. 104 Wallace St., Inc. to keep the sidewalks that abut their property in “reasonably good condition,” the trial court in this case held that the defendants were not responsible for repairing the sidewalk and were not negligent because the property was residential, even though it was owned by a corporation, and because the property was unoccupied and thus not used commercially.

EMPLOYMENT DISCRIMINATION
EHMANN v. SEA SPA, LLC
Appellate Division, A-3382-04T2, December 16, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18975

Summary judgment for the defendant employer in an action alleging age discrimination in violation of the Law Against Discrimination reversed and remanded; the plaintiff massage therapist was 55 years old when she was hired in March 2001, her hours were reduced in the spring of 2002 in favor of two existing employees who were “substantially younger,” and she was terminated in June 2002 allegedly for lacking certification to perform Reiki therapy and for being the subject of complaints from customers; the trial court had concluded (1) that the plaintiff had not established a prima facie case because she had not been replaced but instead had had her duties assumed by existing employees and (2) that the employer had provided legitimate, nondiscriminatory reasons for her termination; however, the evidence “amply established” a prima facie case, and the employer’s proffered reasons lacked “a degree of credence”; summary judgment for the individual defendant owners was affirmed because the plaintiff did not claim that they had participated in the decision to terminate her.

HUSBAND AND WIFE
BATTISTA v. BATTISTA
Appellate Division, A-1853-04T3, December 15, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18969

Post-divorce-judgment order that denied the plaintiff ex-husband’s motion to modify or terminate alimony affirmed substantially for the reasons expressed by the Family Part; the ex-husband filed his motion after he retired at age 56; the trial court “meticulously applied” Deegan v. Deegan and determined that the ex-husband’s advantage in retiring did not substantially outweigh the disadvantage to the defendant ex-wife (1) because the ex-wife’s earnings were comparable to her earnings during the marriage, (2) because the record did not indicate that the ex-husband’s retirement was “forced” or that the parties had contemplated his retirement at age 55, (3) because the ex-husband “exacerbated his financial situation” by electing to “cash out” his pension and reinvest it in an annuity that could not be withdrawn until he turned 59 and a half, and (4) because the ex-husband terminated his support payments “arbitrarily” and the ex-wife had “little or no opportunity” to prepare to live on reduced support or to earn more; the Family Part’s omission of N.J.S.A. 2A:34-23b from its discussion was harmless because the ex-husband “was otherwise unable to meet his burden under Deegan.”

HUSBAND AND WIFE
TZORFAS v. TZORFAS
Appellate Division, A-2314-04T3, December 15, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18970

Post-divorce-judgment order that denied the plaintiff ex-wife’s motion for an upward modification of the defendant ex-husband’s permanent alimony obligation of $2,500 per month affirmed; the obligation was based on imputed income of $25,000 per year for the ex-wife from her tutoring business; the ex-wife complied with “neither the letter nor the spirit” of Lepis v. Lepis by providing only a “brief and unexplained sworn statement” that her ability to earn income from tutoring was limited or precluded by her health and by the circumstances of the parties’ younger child, who had “pervasive developmental disorder - not otherwise specified”; even if it was appropriate for the ex-wife to rely on “an unexplained collection of documents” to support her motion, the documents that she attached to her certifications did not establish a prima facie case of changed circumstances.

PARENT AND CHILD
CALLAS v. CALLAS
Appellate Division, A-1099-04T5, December 15, 2005, not approved for publication. (18 pages). Facts-on-Call Order No. 18971

Post-divorce-judgment order that denied the defendant father’s motion to reduce his life insurance obligation, that required him to reimburse the plaintiff mother for certain extracurricular expenses for his children, and that awarded $3,500 in attorney’s fees to the mother affirmed in part, reversed in part, and remanded; as to life insurance, the father failed to meet his burden of demonstrating a change of financial circumstances that prevented him from fulfilling his obligation, his request for relief was out of time under Rule 4:50-1, and his evidence nonetheless failed to establish a mutual mistake of fact to warrant setting aside the parties’ property settlement agreement; as to extracurricular expenses, remand was required to review the expenses that the mother claimed and her compliance with the PSA, which required her to obtain the father’s consent before incurring certain expenses; as to attorney’s fees, the trial court did not abuse its discretion by awarding fees to the mother.


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