NEW JERSEY LAWYER

DAILY BRIEFING      02/13/2006


News Briefs

MERCER JUDGE ELEVATED TO APPELLATE COURT
Effective March 1, Mercer County Judge Paulette M. Sapp-Peterson will become the first black woman to be appointed to the Appellate Division. The elevation of the 17-year judicial veteran was announced by Chief Justice Deborah T. Poritz. Sapp-Peterson was first appointed to the bench in 1989 by Gov. Thomas H. Kean and has served in the family, criminal and civil divisions. She was named presiding civil judge in 2001 and served a temporary assignment in the Appellate Division last fall. The Rutgers Law School-Camden alumna was a deputy attorney general and special assistant to the adjutant general for the state Department of Military and Veterans Affairs. She also was an Air National Guard staff judge advocate from 1980 to 1994 and a municipal judge in Trenton from 1981 to 1989. 2-10-06

ATTORNEY GENERAL NAMES TOP AIDES
Attorney General Zulima V. Farber announced the appointment of Anne M. Milgram as first assistant attorney general and Gregory Paw as the new director of the Division of Criminal Justice. Milgram, 35, will be the No. 2 person in the Department of Law and Public Safety, serving as Farber’s top deputy. Paw, 42, is deputy U.S. attorney for the Eastern District of Pennsylvania. He was deputy chief counsel of the regime crimes liaison office in Baghdad, which counseled the new Iraqi government in preparing the war crime cases against Saddam Hussein. He will head the division that is responsible for enforcement of the state’s criminal laws and is the main link between the department and New Jersey’s law enforcement community. Milgram was lead federal prosecutor in the nation for human trafficking crimes and was an assistant district attorney under Robert Morganthau in Manhattan. She was in the criminal section of the Justice Department’s Civil Rights Division, where she prosecuted hate crimes and official misconduct. She left the Justice Department in 2005 to serve as counsel to Gov. Jon S. Corzine during his last year in the U.S. Senate. 2-10-06

APPEALS COURT UPHOLDS VERDICT IN DRINKING BINGE DEATH
The Appellate Division has upheld a $718,000 award to a woman whose husband died after binge drinking following his release from alcoholism treatment. In an unpublished decision, the appeals court affirmed the jury verdict in favor of Madelene Hoffman in Hoffman v. Atlantic Health System/Overlook Hospital Campus. Her husband, Neil, in 2001 had received six days of treatment at Carrier Clinic in Belle Mead and was in an intensive outpatient program at Overlook Hospital in Summit. He was found dead in a motel room, with the autopsy showing his blood-alcohol level was 0.533, or more than five times the legal limit for drunkenness at the time. A Breathalyzer test taken earlier at Overlook revealed a level of 0.238. Madelene contended the professionals treating her husband were negligent in releasing him instead of readmitting him to an inpatient facility. Philip G. Auerbach of Red Bank was the plaintiff’s attorney and Nicholas C. Caruso of Morristown represented Atlantic Health System. (A full text of Hoffman, Facts-on-Call Order No. 19222, can be ordered from NJL Online or by calling 800-670-3370.) 2-10-06

INJURED PASSENGER AWARDED $2.7 MILLION
A front-seat passenger permanently disabled in a crash with a tractor-trailer has been awarded $2.7 million for future medical care and pain and suffering, while two others hurt in the collision were each awarded $50,000. Even though Pablo Garzun, the driver of the 18-wheeler, had the right of way, a Union County jury in Tejada v. Port Authority of New York-New Jersey found he was at fault for plowing through an Elizabeth intersection nearly four years ago. The truck driver testified he didn’t see the minivan before the accident. Napolean Tejada, 49, left with serious brain injury, now lives in Florida with his sister and is permanently disabled. The driver of the minivan, who was deemed partially at fault, and another passenger both suffered broken bones. The trial was before Judge John Pisansky. Attorneys were James S. Lynch of Paramus for Tejada; John A. Mercer Jr. of Mount Laurel for Carlos Trucking Co., Garzun’s employer; and Evan A. Baker of Morris Plains for the minivan driver. 2-10-06

REINING IN ROGUE BOUNTY HUNTERS
Bounty hunters, who’ve had pretty much free rein to do whatever it takes to apprehend defendants who skip out on bail and fail to show up in court, finally are being regulated in New Jersey. Under a measure long in coming and signed into law recently, these entrepreneurs known by various names including bail runner, bail recovery agent and bail enforcement agent will be required to undergo training, background checks and register with the New Jersey State Police. Legislative sponsors pushed the measure after some highly publicized instances of bounty hunters bringing in the wrong person, busting down innocent people’s doors in the middle of the night and acting like vigilantes. For the full story, see the Feb. 13 New Jersey Lawyer. 2-10-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, FEBRUARY 10, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, FEBRUARY 10, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, FEBRUARY 14, 2006.

NEW JERSEY COURTS ARE CLOSED ON MONDAY, FEBRUARY 13, 2006, AND NO OPINIONS WILL BE RELEASED.



APPROVED FOR PUBLICATION
TORTS
BERNOSKIE v. ZARINSKY
Appellate Division, A-460-03T1, approved for publication February 10, 2006. (19 pages). Facts-on-Call Order No. 92848

Equitable tolling of the two-year statute of limitations for wrongful death claims and survivorship claims based on the defendant’s alleged murder of the plaintiff’s husband was not warranted where the defendant had been acquitted of the charge in a criminal trial and where the death of every potential defense witness during the more than 40 years since the crime seriously impaired the defendant’s ability to defend the claims.

ATTORNEY’S FEES
PELLETTIERI, RABSTEIN AND ALTMAN v. PROTOPAPAS
Appellate Division, A-2482-04T2, approved for publication February 10, 2006. (17 pages). Facts-on-Call Order No. 92849

An attorney’s cause of action for unpaid fees that arises from a retainer agreement that allows for periodic hourly billing accrues when the matter is concluded or when the attorney-client relationship is terminated, whichever occurs first. The Appellate Division reversed partial summary judgment for the defendant client because the complaint was filed less than six years after the termination of the attorney-client relationship.

PARENT AND CHILD
BARBLOCK v. BARBLOCK
Appellate Division, A-3648-04T1, approved for publication February 10, 2006. (18 pages). Facts-on-Call Order No. 92850

In an appeal from an order that allowed the plaintiff ex-wife to remove the parties’ two children from New Jersey to Buffalo, (1) there was ample proof to meet the standard under Baures v. Lewis and (2) there was no reason to vacate the removal order and compel a plenary hearing that would only disrupt the lives of the parties and their children and would be unlikely to lead to a different outcome. The Appellate Division cautioned that, in affirming the order in this case, it did not encourage trial judges to forgo plenary hearings in removal cases where there are genuine issues of material fact.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
KIRSTEIN v. KIM
Appellate Division, A-6462-04T3, February 10, 2006, not approved for publication. (12 pages). Facts-on-Call Order No. 19221

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the motion judge granted summary judgment because the plaintiff failed to provide a comparative analysis of the injuries he sustained in a previous accident and the injuries he sustained in the accident in this case; the Appellate Division declined to express a view as to whether Polk v. Daconceicao remains viable under AICRA because the plaintiff failed to present sufficient objective medical evidence to raise a genuine issue of material fact to show that he had sustained a permanent injury in the accident in this case; the plaintiff’s MRI reports — which showed the injuries to his cervical spine from his previous accident and which did not show a “significant change” in the condition of that area as a result of the accident in this case — did not provide objective evidence of a permanent injury related to the accident in this case; the observation of spasm by the plaintiff’s doctor several months after the accident was not the type of “persistent muscle spasm” that is “indicative of a permanent injury.”

VERBAL THRESHOLD
RODRIGUEZ v. SON
Appellate Division, A-3833-04T2, February 10, 2006, not approved for publication. (3 pages). Facts-on-Call Order No. 19218

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court had concluded that the plaintiff did not establish a factual dispute as to the existence of a significant impact on the plaintiff’s life that was related to the accident; after summary judgment was granted, the New Jersey Supreme Court decided DiProspero v. Penn and Serrano v. Serrano, which held that AICRA had removed the requirement that a plaintiff show a serious impact to survive summary judgment; because the plaintiff’s complaint was dismissed for a failure of proofs that no longer are required, the dismissal had to be reversed and remanded.

DOMESTIC VIOLENCE
STRAHAN v. STRAHAN
Appellate Division, A-4432-04T4, February 10, 2006, not approved for publication. (12 pages). Facts-on-Call Order No. 19219

Family Part determination that vacated the temporary restraining order against the defendant husband and that dismissed the plaintiff wife’s domestic violence complaint based on harassment affirmed; the wife alleged that, during an argument about a $1.7 million transfer from the parties’ joint account, the husband yelled and cursed at her, had “spit coming out of his mouth,” and had his finger in her face, “forcing her to back up”; there was substantial credible evidence to support the Family Part’s conclusion that the husband’s only purpose was to have the wife return the money that she had unilaterally transferred from their joint account and that he did not have a purpose to harass; the wife’s reaction to the husband’s efforts to have her return the money did not “provide a valid basis for inferring” that the husband’s purpose was to harass the wife; contrary to the wife’s argument, the Family Part did not abuse its discretion by excluding testimony from three of her witnesses.

LAND USE
ASHFORTH v. PLANNING BOARD OF THE TOWN OF WESTFIELD
Appellate Division, A-4684-04T5, February 10, 2006, not approved for publication. (10 pages). Facts-on-Call Order No. 19220

Law Division order dismissing the plaintiff property owners’ challenge to the defendant Planning Board’s denial of their variance application affirmed; the plaintiffs wanted to subdivide their conforming lot into two nonconforming lots, and they sought variances from the requirements for lot width at the setback line, frontage, and area; although the Planning Board’s resolution improperly set forth the findings of fact “obliquely” in the form of a discussion of the comments of the Board’s members rather than as findings of the Board as a whole, no remand was required because the record “strongly” supported “the clear consensus of the Board members”; moreover, the plaintiffs’ application was deficient as a matter of law because it did not satisfy the requirements of N.J.S.A. 40:55D-70c(1) and N.J.S.A. 40:55D-70c(2) or the negative criteria of N.J.S.A. 40:55D-70.

ATTORNEYS
MANOLIS v. SHLAKMAN
Chancery Division, Bergen County, BER-C-188-05, February 3, 2006, released February 7, 2006, not approved for publication. By Doyne, J. (7 pages). Facts-on-Call Order No. 19215

Motion by the plaintiff sellers of commercial property to disqualify the defendant buyer’s attorney denied in an action to rescind a contract for the sale of the property, which had been used as a service station and garage; in a two-count complaint, the sellers sought rescission based on legal or equitable fraud or based on a mutual mistake that the property was free from environmental contaminants; invoking Rule of Professional Conduct 3.7(a), the sellers sought to disqualify the attorney as a necessary witness with relevant information about the parties’ pre-contract negotiations and their intent at that time; even though the Chancery Division was not yet prepared to accept the attorney’s contention that the contract was clear on its face and that the intent of the parties would not be a relevant topic at trial, it concluded that disqualification was “too draconian a remedy”; in accordance with RPC 3.7(b), the attorney should arrange for a member of his firm to be present if the attorney is called to testify.


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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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