NEW JERSEY LAWYER

DAILY BRIEFING      02/15/2006


News Briefs

SUIT AGAINST PASSAIC JUDGE SETTLES
The state, as co-defendant with Passaic County Judge Randolph M. Subryan, will pay the judge’s former clerk $300,000 to settle her discrimination suit. Jennifer M. Breaton, accusing the judge of forcibly kissing her in May 2003, filed the suit last summer. The judge and the state, in the text of the agreement signed Feb. 9, disavow any admissions of liability, settling instead “to avoid further expense, inconvenience and delay.” The settlement clears the way for the New Jersey Supreme Court to act on Subryan’s disciplinary case about the incident. The court heard presentations last May, but delayed a decision until the civil case was resolved. The court already ruled out dismissing him from the bench, so he could be suspended, censured or reprimanded. Lisa Manshel of Francis & Manshel in Millburn was Breaton’s attorney. Justin P. Walder of Walder Hayden & Brogan in Roseland represented Subryan in the suit and the disciplinary case, and Deputy Attorney General Meryl G. Nadler represented the state. 2-14-06

N.J. SUPREME COURT HEARS CONSUMER ARBITRATION ISSUES
The state’s highest court heard arguments in two arbitration cases Tuesday, with consumer advocates calling particular clauses unconscionable. The case in HYPERLINK "http://www.judiciary.state.nj.us/webcast/opinions/mohammadv.pdf" Muhammad v. County Bank of Rehoboth Beach case centers on a clause in a short-term loan contract that bars participation in class actions, which consumer advocates say effectively insulates the lenders from suits challenging their conduct. In Delta Funding Corp. v. Harris, consumer advocates say the way the loan was written effectively makes a borrower litigate claims, including defense of foreclosure, twice — in arbitration and in court. 2-14-06

PROSECUTOR SARUBBI TO JOIN ARCHER & GREINER
Gov. Jon S. Corzine will soon have his first opportunity to appoint a county prosecutor. Vincent P. Sarubbi, Camden County Prosecutor since 2002, will leave in mid-March to join Archer & Greiner in Haddonfield. Sarubbi was appointed by Gov. James E. McGreevey, and his term would have ended in July 2007. 2-14-06

ADR TRAINING SET FOR MARCH
The Alternative Dispute Resolution Unit of the state Division of Consumer Affairs in the Department of Law and Public Safety, will conduct a free three-day seminar next month on the art of negotiation and mediation. The training is March 21-23 at 124 Halsey St., 6th Floor, Newark. In addition, interested individuals may be offered a volunteer spot on the unit, which uses volunteer mediators to help resolve consumer/business complaints and patient/doctor fee disputes, among others. The unit is seeking to expand its volunteer base and has limited openings. Those accepted must have completed the training course and commit to six months of four hours a week. For further details, call Linda Palma at (973) 504-6100. 2-14-06

PENNSY CHIEF JUSTICE OFF THE HOOK ON RAISES
Pennsylvania Chief Justice Ralph J. Cappy has been exonerated by a judicial conduct board that said he was within the rules when he advocated for judicial pay raises. The review board pointed to specific rules that say judges may “engage in activities to improve the law, the legal system and the administration of justice.” Pay raises for judges and legislators and top state officials were approved last July, but repealed in November after a grass-roots political backlash. Activist George Stilp, who filed the complaint, said he wasn’t surprised by the ruling but wanted to keep a spotlight on those responsible for the raises. The board’s ruling “takes nothing away from the fact that the citizens of Pennsylvania know that Judge Cappy was completely out of line when he characterized the citizens’ reaction to the pay raises as ‘knee-jerk,’ ” Stilp said. 2-14-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, FEBRUARY 14, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, FEBRUARY 14, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, FEBRUARY 15, 2006.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, FEBRUARY 14, 2006.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
PEREIRA v. ROBERTS
Appellate Division, A-4574-04T3, February 14, 2006, not approved for publication. (9 pages). Facts-on-Call Order No. 19232

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; the plaintiff was involved in accidents in 1997, January 2002, and October 2002, and she claimed that she aggravated existing injuries and sustained new injuries in both 2002 accidents; as to the trial court’s conclusion that there was no objective evidence of a permanent injury, that conclusion was incorrect in light of the plaintiff’s MRIs, nerve conduction studies, positive orthopedic tests, and palpable muscle spasm as well as her doctors’ opinions that she had suffered permanent injuries in both 2002 accidents; as to the trial court’s conclusion that the plaintiff had not provided the comparative analysis required by Polk v. Daconceicao, (1) her doctor’s opinion as to her carpal tunnel injury was sufficient, (2) under Davidson v. Slater and Hardison v. King, no comparative analysis was required for her claims that did not involve the aggravation of a pre-existing condition, and (3) she had to prove her remaining claims for aggravation at trial.

VERBAL THRESHOLD
KNIGHT v. BOGERTY
Appellate Division, A-3374-04T2, February 14, 2006, not approved for publication. (15 pages). Facts-on-Call Order No. 19231

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 concluded that the plaintiff had not presented objective credible medical evidence that his injuries were permanent because his doctor “merely” stated that the plaintiff’s long-term prognosis was “quite guarded”; however, if a plaintiff’s doctor uses “such an indefinite phrase,” the trial court should examine the rest of the medical record to determine whether there are genuine questions as to permanency; in this case, the record was “replete with indicia” that the plaintiff’s injuries “will not heal to function normally” within the meaning of §39:6A-8a; the record indicated that the plaintiff underwent two epidural blocks and a nerve root block but continued to experience lower back pain and to seek treatment for that condition more than 17 months after the accident and that the objective signs of the plaintiff’s injury — including recurrent lumbar spasm and multiple disc bulges — persisted.

DOMESTIC VIOLENCE
BONHOMME v. PINCHINAT
Appellate Division, A-1689-04T2, February 14, 2006, not approved for publication. (2 pages). Facts-on-Call Order No. 19234

Final domestic violence restraining order against the defendant wife affirmed; the plaintiff husband alleged in his complaint that the wife had verbally and physically abused him during their two-month marriage; at the hearing, both parties appeared pro se, and the trial court determined (1) that the husband was more credible than the wife, (2) that the wife had threatened the husband and had hit him three times, and (3) that the husband’s health, safety, and well-being were “in danger from future acts of domestic violence”; the record supported the trial court’s finding that the wife had engaged in “assaultive conduct.”

DRUNK DRIVING
STATE v. LEE
Appellate Division, A-2558-04T1, February 14, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19233

Conviction following a trial de novo of driving while intoxicated affirmed; a police officer found the defendant’s vehicle about 40 feet from the road and down an embankment with its lights on and its motor running; the defendant was sitting in the driver’s seat with his hands on the steering wheel, and he smelled of alcohol and stumbled while walking away from his vehicle; the defendant swayed, answered questions slowly, and performed poorly on field sobriety tests; the Municipal Court found the defendant guilty based on both the Breathalyzer test results and the other evidence; the Law Division found that there were problems with the Municipal Court’s reliance on the test results, and it remanded for a further hearing on the issue; however, the Law Division found the defendant guilty based on the officer’s observations; the Law Division properly convicted the defendant based on the officer’s description of the defendant and the scene; although there was no justification for the Law Division’s remand to the Municipal Court for a hearing on the Municipal Court’s reliance on the Breathalyzer results, the defendant was not prejudiced by the remand.

ARBITRATION
MARINI v. QUALITY REMODELING CO., INC.
Appellate Division, A-5511-04T3, February 10, 2006, not approved for publication. (10 pages). Facts-on-Call Order No. 19230

Final judgment that dismissed the plaintiff homeowners’ complaint and that ordered the parties to proceed to arbitration affirmed in an action arising from a home repair contract; one of the homeowners initialed the first page of the contract, which stated that additional terms and provisions were set forth on the second page; neither homeowner initialed or signed the second page, which provided that claims arising from the contract would be arbitrated; both homeowners conceded that they had entered into the contract, but they argued that they did not agree to the arbitration provision; contrary to the homeowners’ arguments on appeal, (1) the one homeowner’s initials on the first page of the contract bound both homeowners to the terms and provisions on the second page and (2) the trial court did not invoke judicial estoppel to bar them from claiming that they had not agreed to the arbitration provision; the homeowners also argued that the contract violated the Consumer Fraud Act, the relevant regulations, and public policy, but the Appellate Division declined to consider those arguments, which were not raised below.

PARENT AND CHILD
CARRION v. GIUNTA
Appellate Division, A-1800-04T1, February 10, 2006, not approved for publication. (11 pages). Facts-on-Call Order No. 19229

Family Part order that permitted the defendant mother to relocate permanently to Alabama with the parties’ 4-year-old daughter affirmed; the mother became pregnant while attending nursing school in South Carolina; after the plaintiff father declined to go through with the planned wedding, the mother moved back to her parents’ home in New Jersey and gave birth; the father refused to go through with two other planned weddings; in October 2003, the mother visited friends in Alabama and investigated relocating there; in January 2004, the father relocated to New Jersey, but the mother moved to Alabama with the daughter in March due to Alabama’s lower cost of living and affordable housing; contrary to the father’s arguments on appeal, (1) the April 2004 hearing that authorized the mother’s temporary relocation to Alabama had no impact on the July hearing on permanent relocation and (2) the Family Part properly applied the Baures v. Lewis factors and reached the correct result based on the record.

FROM THE FEDERAL COURTS
BANKRUPTCY
IN RE G-I HOLDINGS, INC.
U.S. Bankruptcy Court (DNJ), Case No. 01-30135 (RG), Adv. No. 04-2192 (RG), January 19, 2006, released for publication February 10, 2006. By Gambardella, U.S.B.J. (39 pages). Facts-on-Call Order No. 92853

In an action arising from asbestos claims against the GAF Corporation, the Bankruptcy Court denied the motion of the defendant holders of notes, which had been issued by the defendant nondebtor subsidiary, to dismiss the adversary complaint filed by the plaintiff Official Committee of Asbestos Claimants of the successor-in-interest to the GAF Corporation. The Committee alleged that transactions in 1994 and 2000 involving the successor’s roofing business were designed to subordinate the rights of asbestos claimants, and it sought in a two-count adversary complaint to avoid (1) the 1994 transaction under 11 U.S.C. §544(b) as a fraudulent conveyance and (2) the 2000 transactions under 11 U.S.C. §550 as voidable and recoverable transfers. The Bankruptcy Court concluded that both counts were consistent with its earlier order that limited the Committee’s claims and were sufficient to withstand a motion to dismiss.

SEARCH AND SEIZURE
UNITED STATES v. JACKSON
U.S. District Court (DNJ), Criminal Action No. 05-477 (FLW), February 10, 2006. By Wolfson, U.S.D.J. (19 pages). Facts-on-Call Order No. 92852

The District Court denied the defendant’s motion to suppress a handgun and ammunition that were seized by a police officer who executed a warrant for the defendant’s arrest. When the officer entered the defendant’s bedroom alone to retrieve the defendant’s shoes, he saw the gun in plain view protruding from between two mattresses, and he found the ammunition when he lifted the mattress to seize the gun. Even if the Third Circuit recognized the “clothing exception” to the search warrant requirement, the District Court concluded that that exception was not needed because the officer had been in the bedroom lawfully in light of the defendant’s consent. Therefore, the District Court concluded that the officer was lawfully in the bedroom when he found the gun in plain view.

SEARCH AND SEIZURE
UNITED STATES v. HARTWELL
Third Circuit, No. 04-3841, January 31, 2006. By Alito, C.J. Also on panel: Scirica, Chief Judge and Rendell, C.J. (13 pages). Facts-on-Call Order No. 92841

The Third Circuit affirmed the District Court’s determination that the crack cocaine found on the defendant’s person at an airport security checkpoint should not be suppressed. When the defendant set off the metal detector at the checkpoint, Transportation Security Administration agents used a magnetic wand to find any metal on his person. The agents detected something in the defendant’s pocket and asked to see it. The agents ultimately discovered the crack cocaine, and the defendant was arrested. The Third Circuit concluded (1) that the search did not offend the Fourth Amendment, even though it had been initiated without individualized suspicion and was conducted without a warrant, and (2) that the search was permissible under the administrative search doctrine.


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