NEW JERSEY LAWYER

DAILY BRIEFING      02/10/2005


News Briefs

HEARING NEXT MONTH ON PROSECUTOR FUNDING
Set to be heard next month before Cumberland County Assignment Judge George H. Stanger Jr. is County Prosecutor Ronald J. Casella’s bid for more funding for his office. Upset that county freeholders did not meet his full funding request last month for creation of a third trial team, he filed a detailed petition showing his office is understaffed, underpaid and overworked. The number of assistant prosecutors there has remained at 15 since 2002, even as the number in Morris and Gloucester counties, which have similar workloads, has risen, and current staff members’ salaries are lower than those of counterparts in other counties, the petition states. The hearing will begin the week of March 14 following case management conferences Feb. 15 and March 3. 2-9-05

JURY AWARDS $387,000 FOR INJURIES IN AUTOMOBILE ACCIDENT
Following a three-day trial before Monmouth County Judge Joseph P. Quinn, a jury awarded $387,221 in damages, including prejudgment interest, to Joseph Rumsey, a 49-year-old police officer at Fort Monmouth. He sustained back injuries and a broken rib in December 2000, when Donald W. Brader, attempting to turn left from the parking lot of Redhead’s Bar in Eatontown, struck a car driven by Patty Sawyer, causing it to hit Rumsey’s vehicle head-on. The jury found Brader 100 percent liable for the accident. Linden attorney Michael A. Percurio represented the plaintiff in Rumsey v. Brader. Attorneys for the defendants were Sean Doherty of Manalapan and Michael Dean of Manasquan. 2-9-05

STATE OFFERS VERIZON SECOND-LARGEST INCENTIVE GRANT
As part of a plan that calls for Verizon Communications to establish an operations center here, keeping a projected 2,355 jobs and attracting nearly 2,000 more, New Jersey has offered the telecom giant up to $63.9 million in incentive grants. The offer, coming just as the Garden State dukes it out with New York and Virginia to attract the nation’s largest phone company, would be one of the most generous grants ever awarded under the state’s Business Employment Incentive Program, second only to a grant to Goldman Sachs. Verizon, already New Jersey’s third-largest private employer, will maintain its corporate headquarters in Manhattan, but plans to open an operations center outside the city. Its cellular business, Verizon Wireless, is based in Bedminster. 2-9-05

CORPORATE COUNSEL ESTABLISHES ELECTRONIC DISCOVERY POLICY
In anticipation of testifying before the Civil Rules Advisory Committee of the Judicial Conference of the United States,, which is proposing changes to Federal Rules of Evidence aimed at bringing discovery rules into the electronic age, the Association of Corporate Counsel (ACC) has adopted an e-discovery policy. It specifically supports proposals that limit the need to preserve and produce information that would otherwise be rendered inaccessible under regular records retention policies and procedures. Current rules developed for a paper-based litigation system are unclear, says ACC, and may give too much latitude for discovery abuse, especially affecting companies that have properly purged or recycled documents under reasonable corporate records retention or disaster recovery policies. The association also supports a safe harbor from sanctions for the routine loss of information that can occur within an electronic records system, despite good faith operation. 2-9-05

BAD HAIR? GOOD EXCUSE
Is Justice Clarence Thomas’ hair looking a little longer these days? Well, it’s probably not because he has rock star aspirations. “It’s just that a cost-cutting initiative by Supreme Court officials has shut down the barbership where justices, lawyers and court employees have had their hair cut as far back as 1935. Thomas was among the steadiest customers, but the shop’s $15 haircuts attracted other justices including Anthony M. Kennedy and David Souter. The clientele was inclusive — clerks, police officers and custodians, as well as justices, were welcome in the court barber’s chair. But in the end, there just weren’t enough customers, said court spokeswoman Kathy Arberg. So officials phased out the shop during a renovation project. 2-9-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, FEBRUARY 9, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, FEBRUARY 9, 2005.

THE SUPREME COURT has announced that it will release an opinion in IN RE ZEITLER, D-162, on February 10, 2005. Zeitler is an attorney disciplinary action.



APPROVED FOR PUBLICATION
PUBLIC UTILITIES
IN RE ALLEGED NON-COMPLIANCE BY RCN OF NY
Appellate Division, A-6422-02T3, approved for publication February 9, 2005. (17 pages). Facts-on-Call Order No. 92306

RCN Telecom Services, Inc., which operates a satellite master antennae television system in Jersey City’s Newport complex, is not a cable system under 47 U.S.C. §522(7) and therefore is not subject to the jurisdiction of the Board of Public Utilities.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
OZBAS v. POTERE
Appellate Division, A-1210-03T5, February 9, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17602

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the 47-year-old plaintiff claimed that he suffered pain routinely, that he took medication daily to enable him to function, that he was no longer able to work as a gas station attendant, that he was unable to perform many household chores, and that he was no longer able to participate in recreational sports; summary judgment was improper (1) because, based on the findings of two doctors, the plaintiff had presented objective, credible evidence of permanent injuries to the middle finger of his left hand and his right knee and (2) because a fact-finder could determine that the plaintiff’s injuries had a serious impact on his life.

MEDICAL MALPRACTICE
MUCCI v. ARRITT
Appellate Division, A-5330-02T3, February 9, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17603

Summary judgment dismissing the plaintiffs’ medical malpractice action for failure to comply with the Affidavit of Merit Statute affirmed; the plaintiffs did not substantially comply with the Statute, and there were no extraordinary circumstances that explained their noncompliance; the plaintiffs’ attorney admitted that he never had filed a federal civil rights claim before and that the affidavit of merit requirement came to his attention only after the summary judgment motions were brought; contrary to the plaintiffs’ assertions, the defendant doctors did not fail to disclose their employment status where they denied employment with the State in their answers to the plaintiffs’ complaint and where the plaintiffs’ counsel admitted that he did not ask a specific question about their employment status; the defendants’ motion for summary judgment was timely, and serving the defendants with the plaintiffs’ expert report 11 days after learning that they were not State employees was not substantial compliance with the Statute.

EMPLOYMENT LAW
APGAR v. FLOWSERVE CORP.
Appellate Division, A-5323-03T1, February 9, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 17604

Judgment ruling that the plaintiff was entitled to 25 vacation days per year, retroactive to January 1, 2000, less any vacation days that he already had taken affirmed; the defendant employer was not bound by the vacation policy that was established by its predecessor, and it was not required to use the adjusted hire date for the plaintiff set forth in the predecessor’s memo when determining the plaintiff’s entitlement to vacation; also, there was nothing in the employee bulletins or memo issued by the defendant that would contractually bind the defendant to prospectively determine the plaintiff’s date of hire so as to give the plaintiff 25 vacation days per year; however, a reasonable interpretation of the defendant’s vacation policy, as it applied to former employees of the predecessor, was that the plaintiff was entitled to 25 days of vacation based on his last date of hire with the predecessor.

PARENT AND CHILD
BAYSMORE v. MOUZAN
Appellate Division, A-5025-03T1, February 9, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17599

Family Part order directing that the parties have joint custody of their child, directing that the defendant father be the parent of alternate residence, and fixing the defendant’s child support payments affirmed; the Family Part entered the order after reviewing a best interest report and hearing the parties’ testimony; the defendant’s contention that the Family Part judge was biased against him and considered only the factors that she perceived to weigh in the plaintiff mother’s favor in making her custody determination was without merit, and the Family Part weighed all of the factors and reached its determination based on the child’s best interests; the Family Part’s decision was “more than adequately supported” by the record.

PUBLIC EMPLOYEES
EWTUSHEK v. TOWNSHIP OF OLD BRIDGE
Appellate Division, A-5147-03T1, February 9, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17605

Law Division order affirming the administrative decision that terminated the plaintiff police officer from his employment affirmed; the plaintiff was involved in an off-duty automobile accident in which he was intoxicated and refused to submit to a Breathalyzer test or other sobriety tests; some of the plaintiff’s other disciplinary infractions involved intoxication; the Law Division correctly sustained all of the charges against the plaintiff and correctly concluded that the appropriate penalty was the plaintiff’s removal where the Law Division found (1) that the plaintiff had a poor disciplinary record during his five years as a police officer and (2) that the position of police officer carries with it “awesome authority” and that police officers therefore are “held to a higher standard.”

DRUNK DRIVING
STATE v. SYPNIEWSKI
Appellate Division, A-5606-03T2, February 9, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17600

Conviction of driving while intoxicated affirmed; a police officer followed the defendant’s pickup truck after it left a bar and made a U-turn; a registration check revealed that the truck’s owner had a suspended license, and the officer pulled the truck over after it weaved over the white fog line; the officer observed that the defendant’s eyes were watery and bloodshot, that his speech was slurred, that his eyelids drooped, that his breath smelled of alcohol, and that he was unable to perform field sobriety tests; inside the police car, the defendant admitted that he had been drinking; contrary to the defendant’s claim of ineffective assistance of counsel, his attorney should not have moved (1) to “suppress” the stop because the motion would have been futile since the officer had probable cause to stop the truck and (2) to suppress his statement on Miranda grounds because the statement was voluntary and spontaneous and was not given in response to police interrogation.

DRUNK DRIVING
STATE v. FRANKLIN
Appellate Division, A-2591-03T3, February 9, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17601

Convictions of driving while intoxicated and careless driving and denial of the defendant’s motion for reconsideration affirmed; a police officer stopped the defendant’s vehicle after he observed it pass another vehicle on the right and speed through a construction zone; the defendant smelled of alcohol, slurred his speech, had bloodshot eyes, and failed a Breathalyzer test; contrary to the defendant’s arguments on appeal, (1) the stop was not illegal, (2) the Breathalyzer test results were admissible because there was probable cause to administer it and because the defendant did not meet his burden of establishing that his gastrointestinal reflux disease had an impact on the test results, and (3) any violation of his Miranda rights did not affect the admissibility of the Breathalyzer test results because there was probable cause to administer the tests independent of his admissions.


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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.)


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