NEW JERSEY LAWYER

DAILY BRIEFING      12/23/2005


News Briefs

APPELLATE DIVISION CLERK APPOINTED
John M. Chacko, a longtime judiciary employee, has been appointed clerk of the Appellate Division. He’s been criminal division manager in Middlesex County since 1986 and began his career with the judiciary as assignment clerk in the Juvenile and Domestic Relations Court in Middlesex County. In that capacity, Chacko was instrumental in the transition of that court into the family division in Middlesex in 1984. In his new role, Chacko will manage the Appellate Division’s central office operations and provide support to appeals court judges and staff in Trenton and statewide. He succeeds acting Clerk Jeffrey A. Newman, who stepped in after the retirement last summer of James Flynn. 12-22-05

EMBATTLED MEDICAL SCHOOL TAPS FORMER FEDERAL PROSECUTOR
When the target of a federal investigation, it sure helps to hire a former U.S. prosecutor. That’s what officials of the University of Medicine and Dentistry of New Jersey apparently concluded when it hired former assistant U.S. Attorney Walter F. Timpone this week. He’ll represent the school in negotiations sought by U.S. Attorney Christopher J. Christie, who delivered an ultimatum to the medical school’s trustees: accept federal takeover of the school’s financial operations or face criminal prosecution on a host of charges including Medicaid fraud. Timpone, a partner with McElroy, Deutsch & Mulvaney in Morristown, is no stranger to public corruption cases. He now concentrates on internal investigations and complex commercial litigation. While in the U.S. Attorney’s Office, Timpone was head of the special prosecutions division focusing on public corruption. 12-22-05

SUIT REJECTED CHALLENGING SEALED DIVORCE FINANCIAL PAPERS
A New Hampshire man has lost his challenge to a state law that makes it a crime to disclose sealed personal financial statements filed in divorce and other family law cases, but an appeal in a similar challenge is pending. U.S. Magistrate Judge James R. Muirhead dismissed the complaint filed by Arthur Ginsberg, who sued Attorney General Kelly Ayotte in U.S. District Court. Ginsberg said he wanted to hire a forensic accountant to review financial statements from his divorce but worried he would be prosecuted. News organizations sued in state court to have the 1994 law declared unconstitutional. They filed an appeal after losing. The law seals all personal financial statements filed in divorce, custody and child-support cases. Supporters of the law say it protects financial information from identity thieves, marketing firms, con artists and nosy neighbors, particularly as the state moves toward posting court records online. 12-22-05

FREEZING FROLIC IN OCEAN WILL BE ‘DRY’ THIS YEAR
When hundreds of law enforcement officers and others take their annual mid-winter dip in the near-freezing Atlantic Ocean in February, they’ll have to be satisfied with warming up later with a cup of hot chocolate. There’ll be no hot toddies after the Polar Bear Plunge in Point Pleasant Beach if Mayor Thomas S. Vogel gets his way. The borough council approved the event slated for noon Feb. 26 with the understanding the organizers will try to convince local bars and liquor stores to refrain from selling alcohol during the event and for several hours afterward. The plunge has been held 12 years to raise money for the Special Olympics. Vogel wants to cancel the event in 2007 unless sponsors can solve problems associated with alcohol consumption. 12-22-05

WYOMING JUDGE IS BIG SPENDER ON REMODELING OFFICES
A federal appeals judge in Wyoming might have done better had he consulted Martha Stewart — he spent nearly $80,000 to remodel one office then plunked down more than $125,000 to remodel a second office in another building. Those costs to the government are on top of the $9,725 in monthly rent paid a local attorney who owns the building where 10th U.S. Circuit Court of Appeals Judge Terrence O’Brien moved his office in October 2004. He moved there two years after his second-floor office in a federal building underwent renovation. The costs were detailed in documents released last week by the U.S. General Services Administration to the Wyoming Tribune-Eagle. 12-22-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, DECEMBER 22, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, DECEMBER 22, 2005:

INSURANCE
PROFORMANCE INSURANCE CO. v. JONES
New Jersey Supreme Court, A-102, December 22, 2005. (24 pages). Facts-on-Call Order No. 92776

Where a permittee uses a vehicle in violation of the business-pursuits exclusion in the insured’s policy and disregards the insured’s direction not to let anyone else use the vehicle, the grant of initial permission requires the insurer to provide coverage for third-party claims, and the policy should be construed to provide coverage up to the minimum limits that are required by statute.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, DECEMBER 23, 2005.



APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON THURSDAY, DECEMBER 22, 2005.

NOT APPROVED FOR PUBLICATION
TORT CLAIMS ACT
LYVAN v. CITY OF EAST ORANGE
Appellate Division, A-1851-04T5, December 22, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 19002

Order that granted the plaintiff’s motion for leave to file a late notice of claim in accordance with the 90-day period under the Tort Claims Act reversed; the plaintiff tripped and fell on a public sidewalk in the defendant City on November 3, 2003; the plaintiff’s attorney sent a notice of claim via regular mail on February 2, 2004 and via certified mail on February 3; after receiving the notice on February 4, the City’s claims administrator sent the attorney a notice of claim form that the City had adopted, and the attorney realized while completing the City’s form that the earlier notices had misstated the date of the accident as November 7, 2003; the claims administrator rejected the notice of claim because the original notice of claim was not timely served; pursuant to the Act, the plaintiff had until February 2, 2004 to present her notice of claim through delivery or certified mail, but sending the notice via regular mail on February 2 did not qualify as timely presentation; the trial court erred by granting the plaintiff’s motion because the attorney’s “erroneous transcription of the date of the accident” did not constitute extraordinary circumstances to permit a late filing under N.J.S.A. 59:8-9.

WORKERS’ COMPENSATION
COMBS v. BRADLEES/NJSIGA
Appellate Division, A-3816-04T5, December 22, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 19004

Division of Workers’ Compensation order that directed the respondent New Jersey Self-Insurers Guaranty Association to pay the petitioner employee the unpaid balance of permanent partial disability benefits under a September 2002 order approving settlement and to address issues regarding the Association’s obligation to pay for further medical treatment affirmed; after the employee’s injury, the respondent self-insured employer filed for bankruptcy; the employer accepted compensability of the accident, and the employee received benefits under the September 2002 order until the employer’s bond was exhausted; the Association denied her claim for further benefits under the order because she had not filed a proof of claim in the bankruptcy action; contrary to the Association’s arguments on appeal, (1) the Division had subject-matter jurisdiction to decide whether the Association’s denial of benefits was improper under N.J.S.A. 34:15-120.18a and (2) the judge of compensation did not err by construing 34:15-120.18a to require the Association to pay the benefits to the employee even though she had not filed a proof of claim in the bankruptcy action.

PUBLIC EMPLOYMENT
WARREN HILLS REGIONAL BOARD OF EDUCATION v. WARREN HILLS REGIONAL HIGH SCHOOL EDUCATION ASSOCIATION
Appellate Division, A-1747-04T5, December 22, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 19003

Decision of the Public Employment Relations Commission that determined that the plaintiff Board of Education had committed an unfair labor practice in violation of the New Jersey Employer-Employee Relations Act affirmed; the unfair labor practice occurred when the Board terminated bus drivers and subcontracted their work to a private company in retaliation for the bus drivers’ decision to join the defendant labor union; the hearing examiner had determined that the Board was motivated by its desire to avoid negotiating with the union and by its hostility toward the bus drivers’ decision and that the Board had not established that it would have subcontracted the bus drivers’ work in the absence of its hostility; PERC adopted the hearing examiner’s findings of fact and credibility determinations; substantial credible evidence supported PERC’s decision, and PERC applied the correct legal standard.

PARENT AND CHILD
LISTFIELD v. ROBINSON
Appellate Division, A-5566-03T5, December 22, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 19005

Post-divorce-judgment order that increased the plaintiff father’s child support obligation from $450 per week to $900 per week affirmed; contrary to the father’s arguments on appeal, (1) the defendant mother demonstrated a change of circumstances — an increase in the medical needs of the parties’ two children — that warranted a modification of the parties’ property settlement agreement, (2) the trial court did not err in its calculation of the father’s current income, and the record revealed that his income had increased since the parties’ divorce in 1999, and (3) no plenary hearing was necessary because there was no genuine issue of material fact as to the father’s income, which was “objectively delineated” in his employment contracts, or as to his children’s special needs, the existence of which he had conceded.

DRUNK DRIVING
STATE v. McGEE
Appellate Division, A-4274-04T1, December 22, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 19001

Conviction of driving while intoxicated following a trial de novo affirmed; the defendant waited at the police station for “quite a few hours” for the police to accompany him to his residence following a domestic dispute; at about 10 a.m., the defendant encountered an officer who smelled alcohol on the defendant and, based on his discussion with the defendant, reached a preliminary conclusion that the defendant was under the influence of alcohol; the defendant admitted that he drove to the police station, and he was unable to perform psychophysical tests according to the instructions; the Law Division properly found that the defendant was under the influence of alcohol when he drove, and the defendant’s argument that the State’s proofs were insufficient to establish his guilt lacked merit.

CONSUMER PROTECTION
OLLENDORF v. MONK
Appellate Division, A-3924-04T5, December 21, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18999

Default judgment of $1,516.50 plus costs for the plaintiff car owner against the defendant mechanic and denial of the plaintiff’s request for treble damages under the Consumer Fraud Act reversed and remanded; the plaintiff alleged that the defendant, who allegedly repaired cars from his home, had failed to rebuild the car’s engine in a satisfactory and timely manner; the defendant filed no answer, a default was entered against him, and a proof hearing was held; after the trial court entered a default judgment for the amounts claimed, the plaintiff requested treble damages under the CFA; in holding that the CFA did not apply, the trial court found that the defendant was not an automotive repair dealer because, among other things, he did not advertise his services and he repaired cars part time; although the Appellate Division believed that the CFA did apply, it was troubled by the evidence presented by the plaintiff on his claims and by the lack of proof that the defendant was served with the complaint, with notice of the proof hearing, and with a copy of the default judgment; on remand, the judgment must be vacated if the trial court determines, as an initial matter, that the defendant was not served with the complaint.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF G.A.G.
Appellate Division, A-6429-04T2, December 21, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 19000

Order that continued the appellant’s civil commitment to the Special Treatment Unit under the Sexually Violent Predator Act affirmed substantially for the reasons expressed by the trial court; the appellant was first committed in January 1999 after he completed a sentence for aggravated sexual assault against his 15-month-old relative; the appellant had a prior conviction for kidnapping and sexually abusing a 6 year old, and he admitted to committing other sexual crimes against children, one of whom he had considered killing; the trial court properly concluded that clear and convincing evidence established that the appellant had abnormal mental conditions and personality disorders that predisposed him to commit sexually violent acts and that he was “highly likely” to recidivate; moreover, there was no plan for conditional release that reduced the risk posed by the appellant below the “highly likely” standard, and the STU’s efforts to address his ADHD and bipolar disorder should be considered in later proceedings.

FROM THE FEDERAL COURTS
CONSTITUTIONAL LAW
832 CORP., INC. v. GLOUCESTER TOWNSHIP
U.S. District Court (DNJ), Civil Action No. 04-1140 (JEI), December 12, 2005, released for publication December 15, 2005. By Irenas, Senior U.S.D.J. (47 pages). Facts-on-Call Order No. 92775

On cross-motions for summary judgment in an action by the plaintiff nightclub operators that challenged the constitutionality of the defendant Township’s ordinance that regulates adult businesses, the District Court granted the Township’s motion and denied the plaintiffs’ motion. The ordinance requires all adult-use establishments (1) to obtain operating licenses, (2) to pay license fees, (3) to obey restrictions on their locations, hours, advertising and signage, and interior lighting and construction, and (4) to permit inspections of their premises. The District Court rejected the plaintiffs’ claims that the ordinance violated their substantive due process rights and their rights under the First, Fourth, and Fourteenth Amendments.

RIGHT TO COUNSEL
D’AMARIO v. UNITED STATES
U.S. District Court (DNJ), Civil Action No. 04-2221 (JEI), December 7, 2005. By Irenas, Senior U.S.D.J. (31 pages). Facts-on-Call Order No. 92774

The District Court denied the petitioner’s motion under 28 U.S.C. 2255 to vacate, set aside, or correct his sentence for threatening a federal judge. The “essence of the motion” was that the petitioner had been denied his right to the effective assistance of counsel under the Sixth Amendment “at every stage of the case,” and the petitioner also asserted five grounds for relief that were not raised on direct appeal due to the alleged ineffective assistance of counsel. The District Court determined that the record “conclusively” demonstrated that the petitioner was not entitled to relief, and it therefore denied the motion without conducting an evidentiary hearing.


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