NEW JERSEY LAWYER

DAILY BRIEFING      12/09/2005


News Briefs

GIBBONS ACQUIRES HECKER BROWN IN PHILADELPHIA
Gibbons, Del Deo, Dolan, Griffinger & Vecchione has acquired civil litigation boutique Hecker Brown Sherry and Johnson. The 25 attorneys in that firm will increase Gibbons’ Philadelphia presence to 28 lawyers. Practice areas in that office include products liability, mass torts, commercial litigation, employment law and complex insurance litigation. Gibbons, Del Deo now has more than 200 attorneys in offices in Newark, New York, Trenton and Philadelphia. 12-8-05.

DOCUMENTS RELEASED IN JUDGE’S SUIT VS. JUDICIARY
A state appeals court release of some previously sealed documents opens an extraordinary window into how the judiciary handles a gender-bias case against itself. It also focuses anew on what may be in papers still impounded. The materials involving Superior Court Judge Francine A. Schott’s suit against the court hierarchy underscores the state’s position that a judge who accuses the state of sex discrimination and retaliation has no case unless she can prove she was hurt financially or in some other demonstrable way. A full story is in the Dec. 12 New Jersey Lawyer. 12-8-05

LITTLE PUTTER BIKES NOT A TOY FOR DWI
Years after motorized scooters and “pocket” bikes buzzed into the state’s youth market, some people still haven’t gotten the message that their legal use is severely limited, and using them illegally puts the rider in the sights of the state’s motor vehicle laws. In Passaic County, Judge Ernest M. Caposela told a Paterson man convicted of driving one while drunk that, yes, a pocket bike is a motor vehicle and his municipal court DWI conviction stands. Last year, after borrowing his nephew’s pocket bike for a ride to the store, Wayne resident George Kaiser was stopped and charged with drunken driving. His attorney protested the bike was a toy and not a motor vehicle, but state laws define anything that can be ridden, has wheels and a motor is a motor vehicle. And while there are statutes allowing towns to designate areas where the scooters and bikes can be used, they’re still illegal on streets and sidewalks — even when driven sober. 12-8-05

HE DID THE TIME, BUT HE’S BARRED FROM THE BAR
The Arizona Supreme Court, backed by the state bar association there, is withholding a law license from James Hamm, even though he graduated from law school and passed the bar. That’s because he also was convicted of murder after a drug-related shooting in 1974. He served 17 years and while in prison earned a college degree. After his release, he enrolled in Arizona State Law School. He passed the bar in 1999, but the last formality was a fitness and character application; in that regard, the justices said he didn’t pass muster. While Arizona doesn’t automatically ban applicants with records like Hamm’s, “an applicant with such a background must make an extraordinary showing of rehabilitation and present good moral character,” said Chief Justice Ruth McGregor. Apparently, Hamm still disagrees with the prosecution’s version of his motives in the shooting, and the court said this shows he’s not owning up to the seriousness of his crime. 12-8-05

N.Y. PAROLE BOARD UPHELD IN KEEPING LAWYER IN PRISON
A New York Appellate Division decision has upheld the Board of Parole’s discretion in refusing parole for disbarred lawyer Steven J. Romer, who has served 13 years in prison for stealing $7 million from his clients. Romer took the board to court after it denied him parole even though he had no previous record and has been a model prisoner at Sing Sing. But the board said there was one more condition — he admit he committed a crime. The court said the board had leeway to weigh such factors as it wished. Unless he’s eventually paroled, Romer will serve more than 22 years in prison. 12-8-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, DECEMBER 8, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, DECEMBER 8, 2005:

WITNESSES
CREANGA v. JARDAL
New Jersey Supreme Court, A-100, December 8, 2005. (25 pages). Facts-on-Call Order No. 92757

In an action alleging that an automobile accident induced the plaintiff’s premature labor, which resulted in the death of her child, the trial court may admit an expert’s differential diagnosis into evidence if the proper diagnostic procedures were followed. In this case, the expert’s testimony was admissible as a properly conducted differential diagnosis and was improperly excluded from trial.

CDS OFFENSES
STATE v. LEWIS
New Jersey Supreme Court, A-84, December 8, 2005. (30 pages). Facts-on-Call Order No. 92758

Under N.J.S.A. 2C:35-7.1, which prohibits the possession of CDS with intent to distribute while within 500 feet of a public park, a defendant may constructively possess CDS that is located outside the public park zone while he is inside the zone. Justice LaVecchia dissented.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, DECEMBER 9, 2005.



APPROVED FOR PUBLICATION
SENTENCING
STATE v. OWENS
Appellate Division, A-4694-03T4, approved for publication December 8, 2005. (17 pages). Facts-on-Call Order No. 92756

When a defendant’s first and second convictions are entered during a single plea proceeding, the court may not impose an extended term pursuant to N.J.S.A. 2C:43-6f.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
WRIGHT v. MUDRICK
Appellate Division, A-3983-04T2, December 8, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18931

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; two years before her accident, the plaintiff received physical therapy on three occasions during a 19-day period to treat her sore shoulder and neck, and she was asymptomatic until the accident; contrary to the trial court’s conclusion, the plaintiff presented sufficient objective clinical evidence of a permanent injury caused by the accident where there was evidence of spasm and a herniated disc and where one doctor reviewed her MRI and found impingement; a comparative analysis under Polk v. Daconceicao would not have been possible because there was no evidence of residuals from the discomfort that the plaintiff had experienced two years before the accident.

INSURANCE
EVORA v. RECIPROCAL MANAGEMENT CORP.
Appellate Division, A-2271-04T3, December 8, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18933

Order denying the plaintiff insured’s application to compel the defendant insurer to proceed to uninsured motorist arbitration affirmed; while on vacation in Florida with her mother, the insured rented a car, and she was driving that car when it collided with a vehicle whose driver was not insured for bodily injury; the insured sought UM benefits under her New Jersey policy for her mother, who died from injuries she sustained in the collision; the policy provided UM coverage to the insured or any “family member” and any person that occupied “your covered auto”; contrary to the insured’s arguments on appeal, (1) her mother did not fit within the policy’s definition of “family member” because she was not a resident of the insured’s household and because the policy’s terms did not create an objectively reasonable expectation that her mother was covered and (2) the rental car did not fit within the definition of “your covered auto.”

CIVIL PROCEDURE
KORTOCI v. NEWTON
Appellate Division, A-4839-03T2, December 8, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18932

Judgment for the plaintiff driver based on a jury verdict in an automobile negligence action and denial of the motion for a new trial by the defendant daughter and the defendant mother reversed and remanded; the daughter maintained that she had not struck the plaintiff’s vehicle while driving her mother’s vehicle; a new trial was required because the summation by the plaintiff’s attorney denigrated the witnesses and the parties, implied that the opinion of the defendants’ expert was based on the amount of his fee rather than on the record, accused the daughter of “refusing to come clean,” and repeatedly asserted that the plaintiff and his witnesses were truthful and that the plaintiff was entitled to a recovery simply because he had been injured and had accused the daughter of being responsible; the remarks of the plaintiff’s attorney, which might have passed muster individually, collectively deprived the defendants of a fair trial.

EMPLOYMENT DISCRIMINATION
JOHNSON v. IRVINGTON BOARD OF EDUCATION
Appellate Division, A-6906-03T5, December 8, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18934

Summary judgment that dismissed the plaintiff accountant’s complaint alleging “pregnancy discrimination” affirmed substantially for the reasons expressed by the trial court; the plaintiff’s employment contract with the respondent Board of Education extended from August 20, 2001 to June 30, 2002, and she learned of her pregnancy in November 2001; on June 27, 2002, the Board voted to rehire all of the employees in its central office except for the plaintiff; the plaintiff gave birth in July 2002, and she alleged that she had not received any response to her attempts in September 2002 to get her job back; the trial court determined that the plaintiff had established a prima facie case of “pregnancy discrimination,” that the Board’s alleged reason for not rehiring her — insubordination — was legitimate and nondiscriminatory, and that the plaintiff had not presented proof that the Board’s reason was a pretext for discrimination.

APPELLATE PROCEDURE
TOWNSHIP OF WAYNE v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, LAND USE REGULATION PROGRAM
Appellate Division, A-598-03T2, December 7, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 18930

Joint appeal by the appellant municipality and its developer from the denial by the Department of Environmental Protection of a freshwater wetlands permit for the proposed redevelopment of land owned by the municipality dismissed with prejudice; the municipality withdrew its appeal and informed the Appellate Division that its redevelopment contract with the developer had expired and would not be renewed; the developer conceded that it would be “unfair and impractical” to proceed with the appeal without the municipality’s “positive participation,” and the DEP maintained that the developer lacked standing to continue the appeal on its own and that the matter had become moot.

TAXATION
WACHOVIA BANK, N.A. v. MANRADGE
Appellate Division, A-2184-04T2, December 7, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18929

Order granting the defendant mortgagee’s motion to vacate a final judgment in a tax sale foreclosure reversed and remanded; the plaintiff successfully bid on the tax sale certificate, and a final judgment was entered on May 28, 2004; on the mortgagee’s motion, the motion court entered an order that provided that the final judgment would be vacated upon redemption, which was required to occur on or before December 3, 2004; the plaintiff correctly argued that the motion court erred by failing to apply the standard for vacating a final judgment under Rule 4:50-1 and by instead applying an equitable standard that extended the redemption period; the Appellate Division expressed no opinion as to whether the record would support vacating the judgment under Rule 4:50-1(a) and Rule 4:50-2.


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