NEW JERSEY LAWYER

DAILY BRIEFING      02/01/2005


News Briefs

SERVICES WEDNESDAY FOR RETIRED JUDGE HELFRICH
A Mass will be celebrated at 9:30 a.m. Wednesday at Corpus Christi Church in Chatham for retired Morris County Judge George P. Helfrich, who died Saturday. Visiting hours are Tuesday from 2 to 5 p.m. and 7 to 9 p.m. at Wm. A. Bradley & Son Funeral Home in Chatham. Judge Helfrich, a graduate of Fordham University School of Law, was a trial attorney and Chatham municipal judge before being appointed a county judge in Morris County in 1973 and a Superior Court judge in 1979. Following his retirement in 1992, he was counsel to then-Ryan Gannon & Helfrich in Florham Park. 1-31-05

FORMER PROSECUTOR’S SUSPENSION EXTENDED
Former Bergen County Prosecutor Larry J. McClure, who has been suspended due to multiple ethics violations since May 21, 2003 by court orders filed in April 2003 and June 2004, won’t be getting his law license back any time soon. Last week, the New Jersey Supreme Court entered an order suspending McClure for an additional year, following the recommendation of the Disciplinary Review Board. This most-recent disciplinary action arose from claims he mishandled a child custody case he took in June 2002. Although the client told him the legal paperwork challenging custody was due by July 26, he failed to file on time and when he did, the papers contained numerous factual errors and misspelled names, according to the complaint, which included other allegations similar to those that brought the earlier suspensions. The order also requires that prior to reinstatement, McClure, admitted in 1971, must provide proof of his fitness to practice law. 1-31-05

JURY AWARDS $1 MILLION TO WOMAN INJURED IN CAR ACCIDENT
Following a three-day trial before Judge Karen D. Russell, a Sussex County jury has awarded $1.06 million in damages to Elaine Feinhals of Hardyston. She suffered a herniated disk, an injury considered permanent and progressive, after an automobile driven by Thelma Aumick in December 2000 emerged from a side road and struck hers. Sparta attorney Andrew A. Fraser represented the plaintiff in Feinhals v. Aumick. The defendant’s insurer, Allstate New Jersey, may appeal the amount of the award, which far exceeded the $80,000 Feinhals sought, according to company spokesman James Griffin. 1-31-05

REALTY TRANSFER FEE TAKES EFFECT
A new law imposing a 1 percent realty transfer fee on the buyer of property for which the consideration exceeds $1 million has been revised to impose the fee based on property class, not zoning, according to a memo issued by Robert K. Thompson, director of the state Division of Taxation. Effective Feb. 1, the law applies to property classified as “residential,” “farm property” and “cooperative.” The fee is waived for any organization the IRS deems tax-exempt. For further information, log on to state.nj.us/treasury/taxation/lpt/localtax.htm or call (609) 292-7813. 1-31-05

COST INCREASING FOR SERVICE BY MAIL
Effective April 1, the fee for simultaneous service of summons by certified and regular mail in Special Civil Part cases will increase from $4 to $6 per defendant. The current fee, in effect since July 2000, no longer can offset the judiciary’s expense for mail service. During 2003, the courts “incurred a cost of $2.1 million … while collecting only $1.6 million for this purpose,” said Judge Philip S. Carchman, administrative director of the courts. The increase also will apply to wage executions served on federal employees. Questions may be directed to Robert D. Pitt, chief of Special Civil Part Services, at P.O. Box 981, Trenton, N.J. 08625-0981, or (609) 292-8470. 1-31-05



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, MONDAY, JANUARY 31, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, JANUARY 31, 2005.

THE SUPREME COURT has announced that it will release opinions in STATE v. COTTO, A-56, STATE v. BENTHAL, A-69, and STATE v. BRANCH, A-78, on Tuesday, February 1, 2005. The issue on appeal in Cotto and Benthal addresses whether the trial court was required to give the jury a specific instruction on identification. The issue on appeal in Branch addresses whether the police detective could testify that he included the defendant’s picture in a photo array based on unspecified information that made the defendant a suspect.



APPROVED FOR PUBLICATION
DEFAMATION
DONATO v. MOLDOW
Appellate Division, A-5942-02T1, approved for publication January 31, 2005. (40 pages). Facts-on-Call Order No. 92283

The defendant, who operated an electronic community bulletin board website, was immune from liability under the Communications Decency Act of 1996, 47 U.S.C. §230, for allegedly defamatory and otherwise actionable messages that had been posted anonymously by third parties.

PREMISES LIABILITY
LONGO v. APRILE
Appellate Division, A-1555-03T3, approved for publication January 31, 2005. (9 pages). Facts-on-Call Order No. 92284

The plaintiff, who was injured when he fell from the defendant neighbors’ roof while helping them power-wash their aluminum siding, was a social guest who was entitled to a warning only of latent, hidden defects; moreover, because the danger was self-evident and because there was no unreasonable risk of harm, the plaintiff was not entitled to recover even if he held the status of business invitee.

NOT APPROVED FOR PUBLICATION
INSURANCE
MERCER MUTUAL INSURANCE CO. v. CHARPENTIER
Appellate Division, A-3150-03T3, January 31, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17567

Summary judgment for the defendant husband and wife reversed and remanded; the defendant insured lived in a single-family home with the defendant husband and wife, who were the insured’s brother and sister-in-law; the husband and wife sued the insured for negligence after the wife fell on snow and ice at the home; the insured sought coverage under her homeowner’s policy with the plaintiff insurer, but the plaintiff invoked its policy exclusion for resident relatives; summary judgment was not appropriate because, even though the trial court correctly identified the Gibson v. Callaghan test as the central authority, there were genuine issues of material fact respecting the defendants’ living arrangements and the application of the policy exclusion.

REAL PROPERTY
FALLONE PROPERTIES, LLC. v. OERTEL
Appellate Division, A-3692-03T3, January 31, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17566

Judgment granting specific performance to the plaintiff developer affirmed; the defendant landowner contracted in December 1998 to sell an approximately 115-acre tract to the plaintiff; the contract permitted the plaintiff to enter the tract to perform tests as long as it restored the tract to its pre-test condition, and the contract was later amended to require the plaintiff to obtain subdivision approval by March 16, 2001 or to be in the process of having a public hearing by that date; the planning board denied the plaintiff’s application on March 26, and an appeal was pending; on March 28, the defendant sought to terminate the contract because the plaintiff had not provided copies of its subdivision application, engineering reports, and plat maps and had not repaired holes that it had dug on the tract during testing; the record indicated that the plaintiff was entitled to specific performance.

HUSBAND AND WIFE
IZENBERG v. IZENBERG
Appellate Division, A-1804-03T2, January 31, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 17570

Post-divorce-judgment orders (1) denying the plaintiff ex-husband’s motion to modify alimony due to the defendant ex-wife’s alleged cohabitation and (2) awarding attorney’s fees to the defendant reversed and remanded; a provision of the settlement agreement that was incorporated into the dual judgment of divorce stated that cohabitation by the defendant would “trigger” a modification of alimony “in accordance with the then extant law of New Jersey”; among other things, the trial court’s interpretation of cohabitation — which required a showing that the parties lived together “all the time, not less than half the time” — was overly restrictive and failed to consider all of the factors in Konzelman v. Konzelman; as to attorney’s fees, the trial court failed to address the factors required by Rule 5:3-5(c).

LAW AGAINST DISCRIMINATION
PENZA v. TFS SECURITIES, INC.
Appellate Division, A-5999-02T3, January 31, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17569

Summary judgment for the defendant securities broker-dealer on three counts alleging age discrimination in violation of the Law Against Discrimination affirmed, but dismissal of two non-LAD counts for lack of prosecution reversed and remanded; the defendant terminated its contract to act as the exclusive securities broker-dealer for the plaintiff, who was a 53-year-old certified financial planner; the trial court correctly determined that the plaintiff was an independent contractor who was not protected by the LAD where the defendant did not control the manner or the means by which the plaintiff performed his job, did not supervise him, did not provide him with any annual leave, did not pay taxes on his behalf, and did not supply him with a workspace or equipment; the plaintiff’s non-LAD claims should have been stayed pending arbitration rather than dismissed.

DOMESTIC VIOLENCE
PAOLINI v. PAOLINI
Appellate Division, A-6163-03T2, January 31, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17568

Final domestic violence restraining order against the defendant husband affirmed; in an incident that occurred within a few days of the plaintiff wife’s divorce complaint, the Family Part found that the defendant had been drinking, that he became confrontational when he saw that the plaintiff had installed a deadbolt on the bedroom door, that he refused to drop the issue and followed his wife upstairs, and that he told her “this is war” and that the lock would not stop him; there was sufficient credible evidence in the record to sustain the Family Part’s conclusion that the defendant’s conduct was an act of domestic violence rather than simply “marital contretemps”; contrary to the defendant’s argument on appeal, the Family Part’s finding of an intent to harass could be inferred from its comments, even though it did not use those exact words.

EDUCATION
ATALLO v. JOHNSON
Appellate Division, A-4433-03T5, January 31, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17571

Decision of the School Ethics Commission (1) that dismissed the ethics complaint of the plaintiff Board of Education member against the defendant attorney and (2) that imposed sanctions for filing a frivolous pleading affirmed; the plaintiff alleged that the defendant had violated the confidentiality of ethics matters by circulating to the Board a status report on other ethics complaints concerning the plaintiff; the Commission properly determined that the defendant was merely a private attorney serving as a special consultant to the Board at the time he prepared the report and therefore that he was not a school official subject to the Commission’s jurisdiction; moreover, because the plaintiff later filed a complaint with the District XI Ethics Committee, the Commission correctly concluded that the plaintiff knew that the Commission lacked jurisdiction.


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.)


Copyright © 2005 The New Jersey Lawyer Inc. All rights reserved.