NEW JERSEY LAWYER

DAILY BRIEFING      02/15/2006


News Briefs

SEN. LANCE FOR HIGH COURT? OOPS!
The stories have begun making the rounds in the press and among political pundits in Trenton that Sen. Leonard Lance is in the running to get Gov. Jon S. Corzine’s nod for the next vacancy on the New Jersey Supreme Court. While Lance is a law graduate and former practicing attorney, the Hunterdon County Democrat has been by his own acknowledgement a full-time legislator since he was elected to the state Assembly 15 years ago. And he is not a licensed New Jersey attorney. Enough said! 2-13-06

NEW JERSEYAN IN LINE FOR KEY ABA POST
Wayne J. Positan of Roseland’s Lum Danzis Drasco & Positan is headed for double honors in a few months. In May he will become president of the New Jersey State Bar Association and in August he’s virtually certain of being elected by the American Bar Association’s House of Delegates to a seat on that organization’s board of governors. In that regard, he would represent New Jersey and Pennsylvania. At the August gathering in Honolulu, Seattle lawyer William H. Neukom is expected to be elected president-elect of the 400,000-member organization and advance to the presidency one year later. 2-13-06

ATTORNEY SEEKING STATE POLICE SECRET REPORT
The lawyer for two state troopers who contend they were harassed by a purported secret hazing group within the New Jersey State Police is seeking the release of a secret investigatory report that the state’s attorneys want kept confidential. U.S. Magistrate Judge Joel B. Rosen is slated to hear arguments Friday on a motion by Moorestown lawyer William H. Buckman to unveil the report. The state is said to be trying to keep the report confidential because of pending federal litigation. An investigation into trooper misconduct began in 2003 following the 2002 suicide of Trooper John Oliva. Buckman sued on behalf of Oliva and Trooper Justin Hopsen, alleging harassment in connection with racial profiling. The probe led to disciplinary action against seven troopers, but the state maintains the alleged hazing group, the Lords of Discipline, never existed. 2-13-06

THREE JUDICIAL VACANCIES IN OCEAN ARE CORZINE’S PRIORITY
The governor’s office is screening potential candidates for three Superior Court vacancies in Ocean County. Gov. Jon S. Corzine’s spokesman Brendan Gilfillan has said filling those seats is a high priority and the governor realizes cases could otherwise become backlogged. Another vacancy is expected this year since Judge Edward J. Turnbach, presiding criminal division judge, will retire in June. One of the seats has been vacant since June 1, 2004 when Judge Peter J. Giovine, then presiding criminal judge, stepped down. Judge Donald F. Campbell retired five months later and Judge James D. Clyne, presiding Chancery Division judge, left the bench last week. 2-13-06

AFTER LENGTHY DISPUTE, WAL-MART GETS JUDGE’S OK
Construction of a Wal-Mart is slated to begin in Vineland in the next few months, now that a Superior Court judge in Salem County has ruled against residents who fought the project. Four residents opposed to the mega-store contended in a lawsuit that an ordinance change to allow the store should be invalidated because one of the city council member’s sons works for Wal-Mart in Colorado. Judge William L. Forester in Cumberland County, where the case was moved, dismissed the suit and lifted the injunction. 2-13-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, FEBRUARY 13, 2006
NEW JERSEY COURTS WERE CLOSED ON MONDAY, FEBRUARY 13, 2006, AND NO OPINIONS WERE RELEASED.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, FEBRUARY 14, 2006.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON MONDAY, FEBRUARY 13, 2006.

NOT APPROVED FOR PUBLICATION
WORKERS’ COMPENSATION
GOLDSTEIN v. ROSENBERG & GOLDSTEIN
Appellate Division, A-4550-04T2, February 10, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19225

Division of Workers’ Compensation decision that the petitioner attorney’s injuries were compensable because they arose out of and in the course of his employment affirmed for the reasons expressed by the judge of compensation; after “hurriedly” exiting his partner’s vehicle at the edge of the parking lot and in front of the entrance to the building where the respondent law firm leased office space, the attorney fell and injured his shoulder; following a trial on the issue of whether the attorney’s claim was barred because his injuries did not occur on the law firm’s premises, the judge concluded that the entrance was under the law firm’s “control” because the law firm paid for the maintenance of the parking lot and common areas and because the parking lot and the entrance were “clearly important to and used in” the law firm’s business.

MEDICAL MALPRACTICE
SHECTMAN v. BRANSFIELD
Appellate Division, A-4949-04T5, February 10, 2006, not approved for publication. (13 pages). Facts-on-Call Order No. 19224

Summary judgment for the defendant psychiatrist reversed and remanded in a medical malpractice action arising from the plaintiff patient’s November 4, 2000 suicide attempt; the 37-year-old patient had not seen the psychiatrist since October 9, 2000, and he testified that he did not think of committing suicide until a few hours before his attempt; the patient’s previous suicide attempt occurred when he was 16 years old; the trial court granted summary judgment based on N.J.S.A. 2A:62A-16, which provides immunity from civil liability for psychiatrists for a patient’s violent acts against himself or others unless the psychiatrist incurs a duty to “warn and protect” the potential victim but fails to perform that duty; however, §2A:62A-16 did not apply to the patient’s claims pursuant to Marshall v. Kelbanov (1) because the statute is not implicated unless the case involves a duty to “warn and protect” and (2) because the psychiatrist did not incur a duty to “warn and protect” under the circumstances where there was no evidence that a suicide attempt was “imminent.”

PUBLIC EMPLOYEES
IN RE GIARRUSSO
Appellate Division, A-3660-04T2, February 10, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19227

Final decision of the Merit System Board that affirmed the removal of the appellant as a senior corrections officer affirmed substantially for the reasons expressed by the administrative law judge in her initial decision and by the Board in its final decision; the appellant was arrested and charged with shoplifting a pair of boots; after the criminal charge was dismissed, the Department of Corrections removed the appellant for conduct unbecoming a public employee; following a hearing, the ALJ determined (1) that the appellant had taken the boots without paying for them, (2) that the appellant’s testimony — including his claim that he had not stolen the boots — was not credible, (3) that he was guilty of conduct unbecoming a corrections officer, and (4) that his removal was justified; the Board adopted the ALJ’s findings and conclusions.

PARENT AND CHILD
KAUFMANN v. FERRAIUOLO
Appellate Division, A-4294-03T5, February 10, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19223

Determination that the defendant father was not obligated to contribute toward his daughter’s college expenses based on the absence of a father-daughter relationship reversed and remanded for an evidentiary hearing; the parties’ separation agreement provided for them to share the post-secondary education expenses for their children; although the parties had not requested an evidentiary hearing, the trial court’s implicit finding that the daughter was to blame for the deterioration of the father-daughter relationship could not be made without an evidentiary hearing; an evidentiary hearing also was necessary in light of the parties’ “conflicting certifications on every relevant element,” including whether the father had repeatedly broken engagements to visit his children and whether he had been excluded from his daughter’s college selection process.

PARENT AND CHILD
WEATHERINGTON v. GORE
Appellate Division, A-4599-04T2, February 10, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19226

Family Part order that granted residential custody of the parties’ 5-year-old daughter to the defendant mother and that granted the plaintiff father visitation every weekend reversed and remanded for a hearing; after the father asked to be designated as the parent of primary residence, the Family Part ordered a best interests investigation; however, the Family Part did not consider the facts assembled during the investigation, and it proceeded as if the issue of custody had been settled and as if the only issue was the visitation schedule; reversal and remand were required because the information presented to the Family Part was sufficient to alert it that the issue of residential custody was not settled and that the father had raised concerns that required full consideration of the daughter’s best interests.

LANDLORD AND TENANT
DRAYTON v. JONES
Appellate Division, A-3801-04T3, February 10, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19228

Judgment of $1,459 against the defendant landlord following a trial in the Special Civil Part affirmed in an action arising from damage to the plaintiff tenant’s furniture and carpets; the landlord disputed only the amount of damages awarded; as to the furniture, it was undisputed that the landlord’s workers damaged two beds, that the beds were part of a bedroom set that cost $1,575, that the style of the set had been discontinued, and that the beds could not be replaced with ones that would match the rest of the set; therefore, the Special Civil Part properly awarded damages to reflect the cost of the entire set with an appropriate reduction for depreciation; as to the carpet, which was damaged by a broken radiator, the record supported the award of $180 based on the tenant’s receipt from a carpet company for $200 and on a reduction for depreciation.

LAW AGAINST DISCRIMINATION
ACHRYMIENIA v. FELMORE ASSOCIATES
Appellate Division, A-2112-04T1, February 9, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19217

Order that awarded the plaintiff tenant $39,840 in attorney’s fees and $1,177.40 in costs following the settlement of her Law Against Discrimination action against the defendant landlord and the defendant superintendent for $15,000 affirmed; based on partially reconstructed time records, the plaintiff’s attorney requested $40,440 in fees for 134.8 hours of work at $300 per hour, $1,177.40 in costs, and a 35 percent enhancement of the lodestar; there was no objection to the requested hourly rate or costs, but the trial court used the “slightly lower” number of hours set forth in defense counsel’s billing records as the lodestar and denied the request for an enhanced award; as to the defendants’ appeal, the award was not excessive or unreasonable in comparison to the settlement amount, which was not “nominal”; as to the plaintiff’s cross-appeal, the trial court did not err by declining her request for an enhanced award.

ELECTIONS
GUSCIORA v. McGREEVEY
Appellate Division, A-2842-04T1, February 9, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19216

January 2005 judgment that denied the plaintiffs’ request for injunctive relief and that dismissed their complaint with prejudice because judicial intervention would violate the separation of powers doctrine remanded in an action that sought to enjoin use of direct recording electronic voting machines in the November 2004 election, to require all DRE voting machines to be retrofitted after the election to provide “a voter verified paper ballot after the November 2004 election,” and to require that all new DRE voting machines be equipped to provide “a voter verified paper ballot”; in July 2005, a statute was enacted that requires “precisely the kind of voter-verified system” that the plaintiffs sought and that provides for the Attorney General to grant waivers of the statutory requirements; the plaintiffs claimed that their action was not moot because violations of constitutional and statutory rights would continue until the statute’s January 1, 2008 implementation date; to resolve the mootness and separation of powers issues, remand was necessary to determine whether it is technologically or financially feasible to implement the statute by January 2008 and what guidelines apply to the grant of waivers.


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