NEW JERSEY LAWYER

DAILY BRIEFING      12/06/2005


News Briefs

$1.85 MILLION SETTLEMENT FOR FALL ON ICE
Ira Miller Jr. of Glenwood has received a $1.85 million settlement for spinal injuries from a January 2002 fall at a Sussex County auto dealership. After he fell on ice while looking at a car at High Point Chevrolet, he needed lower-back surgery and a rare operation in which the front of his spine was reached through his chest. Miller, now 52, still has respiratory problems, takes pain medication and wears a brace from his neck to his waist. Before the fall, he was a computer technician for The Record of Hackensack and a bass player in a rock band. “He’ll never work again,” said his lawyer, Howard D. Popper of Morristown. The case was settled after two days of talks before mediator Robert Feldman of Tinton Falls. John J. McGrath of McKissock & Hoffman in Haddonfield represented the dealership and its owners in Miller v. High Point Chevrolet. 12-5-05

SOLOMON HEADING TO STATE BENCH
Lee A. Solomon, a former Camden County prosecutor and state assemblyman, has been chosen by acting Gov. Richard J. Codey for a Superior Court judgeship. The formal nomination and confirmation by the Senate could come soon. Solomon, 51, of Haddonfield is first deputy U.S. attorney under U.S. Attorney Christopher J. Christie and was Christie’s go-to guy in South Jersey. Solomon had been pushed by some in the past for a federal judgeship. 12-5-05

NJ’S HIGHEST-PAID JOBS SLAMMED MOST
The best-paying jobs in the Garden State are hit hardest by the recent economic downturn. An analysis of state income-tax returns indicate 8,700 people earned at least $1 million in 2003, nearly 4,000 fewer than in 2000. State treasury officials, though, say conditions rebounded by 2004. The average salary in 2003 in New Jersey was $58,546, just $14 less than the average reported in 2000 on income-tax returns. 12-5-05

JURORS UP EMINENT DOMAIN AWARD
A San Diego jury has awarded a California man more than $7.7 million in compensation for the city’s taking of his property for redevelopment in a coveted business district. That’s nearly twice as much as the $4 million the city offered Ahmed Mesdaq and nearly one-third more than the $6 million he had been willing to settle for the business, Gran Havana Cigar and Coffee lounge, and warehouse space. Since the U.S. Supreme Court ruled in Kelo v. City of New London in June, eminent domain has been on the legal radar in New Jersey and nationwide. The high court said a municipality could use its power of eminent domain to seize private property for economic development. Mesdaq’s attorney, Vincent J. Bartolotta Jr. of San Diego, said the verdict “shows governments and big business that if they are going to try to take advantage of the little guy by abusing this process, jurors are going to insist that they pay full and fair value for the property.” 12-5-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, DECEMBER 5, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, DECEMBER 5, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, DECEMBER 6, 2005.


APPROVED FOR PUBLICATION
ATTORNEY’S FEES
APERUTA v. PIRRELLO
Appellate Division, A-1751-04T2, approved for publication December 5, 2005. (24 pages). Facts-on-Call Order No. 92753

The defendant police officer was entitled to reimbursement from the defendant municipality under N.J.S.A. 40A:14-155 for attorney’s fees expended to defend against a defamation suit after the defendant police officer mistakenly disclosed that the plaintiff had AIDS. Judge Weissbard concurred.

NOT APPROVED FOR PUBLICATION
TORTS
MORON v. POSE
Appellate Division, A-4171-03T5, December 5, 2005, not approved for publication. (19 pages). Facts-on-Call Order No. 18912

Judgment of no cause of action and denial of the plaintiffs’ motion for a new trial affirmed in an action for injuries sustained by the plaintiff infant due to her exposure to lead paint in an apartment owned by the defendants; the trial court did not err (1) by failing to instruct the jury on the theory of the breach of an implied warranty of habitability and by limiting the substantive instruction to negligence, (2) by failing to instruct the jury on certain federal and State statutes and regulations, (3) by denying the plaintiffs’ motions for a mistrial and a new trial, (4) by denying the plaintiffs’ motion to take judicial notice of legislative findings and declarations contained in federal and State statutes, and (5) by limiting the plaintiffs’ cross-examination of the defendants’ expert about the Congressional findings and declarations in the federal statutes.

LAW AGAINST DISCRIMINATION
PADILLA v. BERKELEY EDUCATIONAL SERVICES OF NEW JERSEY
Appellate Division, A-4559-03T5, December 5, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18914

Jury verdict (1) for the plaintiff employee on her claim of discriminatory conduct under the Law Against Discrimination due to her pregnancy and (2) for the defendant employer on the plaintiff’s claim of constructive discharge reversed and remanded on the issue of emotional distress damages only; because the jury had been properly instructed on constructive discharge and had rejected that claim, the question of the plaintiff’s economic damages did not survive the verdict; however, the jury interrogatories were erroneous to the extent that they instructed the jury to return its verdict without considering the issue of emotional distress damages after it had concluded that an unlawful discrimination had occurred; because she prevailed on her unlawful discrimination claim, the plaintiff was entitled to attorney’s fees, and that issue also should be considered on remand.

PUBLIC EMPLOYMENT
POLILLO v. LANGFORD
Appellate Division, A-1758-04T5, December 5, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18913

Order dismissing the complaint of the plaintiff municipal employees under the Conscientious Employee Protection Act and the First Amendment against the municipal defendants for failure to state a claim upon which relief could be granted affirmed substantially for the reasons expressed by the Law Division; in a call to a radio talk show, one of the plaintiffs denounced the suspension of another municipal employee and claimed that other municipal employees had engaged in the same conduct as the suspended employee without being penalized; the lawsuit ensued after the deputy mayor and others revealed information from the plaintiffs’ personnel file in calls to radio talk shows and after the plaintiff who made the phone call was suspended for falsely claiming conduct unbecoming a public employee and for misusing municipal property.

ADMINISTRATIVE LAW
STUDIO 45 DISCOTHEQUE, INC. v. GOVERNING BODY OF THE CITY OF UNION CITY
Appellate Division, A-2673-04T5, December 5, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18916

Final determination of the Division of Alcoholic Beverage Control adopting the administrative law judge’s initial decision and revoking the petitioner licensee’s plenary retail consumption license based on the finding that the petitioner’s secret videotaping of patrons in the ladies’ room constituted “lewd and immoral conduct” affirmed; because there were no disputed issues of material fact, the ALJ appropriately disposed of the matter by summary disposition as a matter of law; the camera’s small size and hidden location and the videotape itself clearly supported the findings of the ALJ and the Director that the petitioner’s intent in placing the camera in the ladies’ room was voyeurism; the fact that the police might have been aware that the petitioner previously had videotaped the men’s room due to vandalism and had not told him that it was illegal or might jeopardize his license was not a defense.

DOMESTIC VIOLENCE
DeGIULIO v. DeGIULIO
Appellate Division, A-1486-04T3, December 5, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18915

Order dismissing the defendant husband’s temporary restraining order against the plaintiff wife and entering a final restraining order against him affirmed; the wife testified not only about how the husband broke her finger in the incident that was the subject of the domestic violence complaint but also about numerous prior acts of domestic violence by the husband; the husband denied those incidents, but the trial court mostly accepted the wife’s version of events, and it ruled that the breaking of the wife’s finger was assault and harassment; the defendant correctly argued that the trial court erred by allowing inadmissible, unreliable testimony by a third party, but the error was harmless (1) because the trial court’s findings were based substantially on the wife’s “first-hand account” and (2) because the trial court in the bench trial was in the best position to assess whether the testimony on a given issue was useful; although there was no basis for a finding of harassment, the record supported a conviction for assault, which in turn supported the issuance of the FRO.

PARENT AND CHILD
BRODY v. BRODY
Appellate Division, A-2345-04T3, December 2, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18910

Order requiring the defendant ex-husband to pay 80 percent of the children’s transportation costs to visit him in North Carolina, where he had relocated, and providing that the parties must mutually agree on the mode of transportation and the arrival and destination locations and, if they could not, that flights would be to and from Newark, Mercer County, or Philadelphia Airports affirmed in part, reversed in part, and remanded; the Appellate Division could not identify any reasons for limiting the airline flights to Newark, Mercer County, or Philadelphia Airports, and it reversed and remanded that portion of the order because it could not review the issue without the benefit of findings of fact and conclusions of law; the Appellate Division affirmed the remaining portion of the order for the reasons expressed by the Family Part.

LANDLORD AND TENANT
WARE v. SWEENEY
Appellate Division, A-7045-03T5, December 2, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18911

Final judgment awarding the plaintiff prospective tenants $925 but denying their claims for alleged violations of the Security Deposit Act affirmed; the residential lease was terminated by the defendant landlord before the commencement date of the lease; the $925 paid by the plaintiffs represented the first month’s rent and a processing fee, but they never paid the required security deposit; because it was not bound by the trial court’s determination that the first month’s rent constituted a security deposit, the Appellate Division concluded that the payment was not the requested security deposit in light of the separate provision in the lease for such a deposit; there was no discrimination “against the Section 8 voucher program as a source for the rental monies.”


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