NEW JERSEY LAWYER

DAILY BRIEFING      02/02/2005


News Briefs

REGIONAL LAW FIRM OPENS NEW YORK OFFICE
In a move that marks a new chapter in the venerable firm’s history, Stark & Stark, which originated in Trenton in 1933, has opened a New York office at One Penn Plaza Center. The addition of a New York office is “a strategic business decision that allows us to offer the quality service that our clients expect in a location that is convenient,” said Lewis J. Pepperman, co-managing partner. The firm, with offices in Princeton, Cherry Hill and Philadelphia, describes itself as “a regional law firm with a national client base.” It has 90 attorneys and its practice areas include litigation, securities compliance, real estate and individual services. 2-1-05

LIST OF CARCINOGENS GROWING
For the first time, viruses are on the official list of known or suspected cancer-causing agents, which now identifies 246 substances. The list, issued every two years by the National Institute of Environmental Health Sciences and the National Toxicology Program, includes newly designated carcinogens hepatitis B and hepatitis C viruses, some human papillomaviruses that cause common sexually transmitted diseases, as well as X-rays, gamma rays and neutrons, all of which are used for medical purposes. Additions to the “suspected” category include compounds found in grilled meats; chemicals in textile dyes, paints and inks; naphthalene, used in industrial chemicals, moth repellents and toilet bowl deodorants; and lead and lead compounds. 2-1-05

TRUST RIGHTS UPHELD FOR CHILDREN BORN TO SURROGATE
“Surrogacy is not the functional equivalent of adoption,” wrote Manhattan Surrogate Eve M. Preminger in In re John Doe, ruling a trust provision precluding adopted children from becoming beneficiaries does not apply to children conceived in vitro using donor eggs and carried by a surrogate mother. In what may be the first published New York case involving the rights of such children under a trust, Preminger relied on a court judgment of parental relationship in California, where the children at issue were born. “Under California law, a judgment of parental relationship is entirely distinct from an adoption proceeding,” wrote Preminger, noting California used an “intent” test, under which the people “who intended to be parents, absent other compelling circumstances, should be considered parents.” 2-1-05

MODEL AWARDED $15.6 MILLION FOR COFFEE ‘MUG’
Glendale-based Nestle owes $15.6 million to Russell Christoff, a model and actor turned kindergarten teacher, for using his photo on its Taster’s Choice coffee without his consent, said a Los Angeles Superior Court jury. Nestle sold jars featuring Christoff’s image in various markets between 1986 and 2003, but Christoff, who recalls posing for a two-hour photo shoot in 1986, never knew its use until 2002, when he came face-to-face with his image while shopping. Jurors determined Nestle should have paid Christoff — who received $250 for the photo shoot — $330,000 for using his likeness, plus damages equal to 5 percent of the coffee’s profit during that period, or $15.3 million. Nestle, which plans to appeal, initially alleged the photo was not Christoff, then claimed the employee who selected the photo thought Nestle had consent to use it. 2-1-05

BRITAIN BACKS DOWN ON GOLDFISH BAN
One of Britain’s oldest fairground traditions — the goldfish-in-a-bag prize — was about to be legislated away by a clause in an animal welfare bill that would have outlawed the use of any animal as a competition prize, when it was saved by pre-election fears that it would expose the Labour Party to ridicule. A long-time movement against the practice contends thousands of the fish never make it to people’s homes but are dumped in unsuitable ponds or flushed down the toilet. Supporters counter that the piscene prizes, first popularized in the 1920s, are a hallowed part of childhood. A compromise in the bill is expected that will allow adults, or children accompanied by someone over age 16, to win the fairground goldfish prizes. 2-1-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, FEBRUARY 1, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, FEBRUARY 1, 2005:

CRIMINAL TRIALS
STATE v. COTTO
New Jersey Supreme Court, A-56, February 1, 2005. (28 pages). Facts-on-Call Order No. 92285

In this trial based on allegations that the defendant and an accomplice burglarized the apartment of the defendant’s ex-girlfriend, it was not reversible error for the trial court to fail to give a detailed identification instruction, to admit hearsay statements, or to preclude evidence of third-party guilt.

EVIDENCE
STATE v. BENTHALL
New Jersey Supreme Court, A-69, February 1, 2005. (20 pages). Facts-on-Call Order No. 92286

Because the State was not surprised by the testimony of its uncooperative witness at trial, the State should not have been allowed to neutralize that witness’s testimony under Rule of Evidence 607 or to use neutralized testimony for substantive purposes to secure a conviction.

EVIDENCE
STATE v. BRANCH
New Jersey Supreme Court, A-78, February 1, 2005. (50 pages). Facts-on-Call Order No. 92287

Testimony at trial by a detective that he included the defendant’s picture in a photo array “based on information received” from an unknown source was inadmissible hearsay that violated the defendant’s right of confrontation; testimony about the out-of-court description of the perpetrator by two child victims was not admissible under the “excited utterance” exception to the hearsay rule.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, FEBRUARY 2, 2005.



APPROVED FOR PUBLICATION
INSURANCE
MORAG v. CONTINENTAL INSURANCE CO. OF NEW JERSEY
Appellate Division, A-5024-03T3, approved for publication February 1, 2005. (10 pages). Facts-on-Call Order No. 92288

Where underinsured motorist arbitration resulted in an award of $250,000 and a net award of $150,000, and where the UIM insurer offered to settle for $50,000 but stated that the offer would be withdrawn if it was not accepted and that the insurer would reject the arbitration award, the fair implication of the insurer’s written rejection of the award was that the insurer was demanding a damages trial because the writing told the insured to file a complaint and waived formal service of process; however, better practice would be to demand a trial expressly.

REAL PROPERTY
RANDOLPH TOWN CENTER, L.P. v. COUNTY OF MORRIS
Appellate Division, A-1105-03T3, approved for publication February 1, 2005. (13 pages). Facts-on-Call Order No. 92289

The 30-year and 60-year periods recognized in J&M Land Co. v. First Union Nat. Bank for establishing title to land by adverse possession also apply to the creation of an easement by prescription.

JUDGMENTS
DIALAMERICA MARKETING, INC. v. KEYSPAN ENERGY CORP.
Appellate Division, A-125-03T3, approved for publication February 1, 2005. (16 pages). Facts-on-Call Order No. 92290

When exercising equitable discretion to award prejudgment interest in a commercial contract case, the court may refer to the industry’s rate of return when unusual circumstances exist; when there are no unusual circumstances, the court may use the New Jersey Cash Management Fund rate that is adopted by Rule 4:42-11(a)(ii) as a starting point for its analysis, although it may consider the higher rate adopted by Rule 4:42-11(a)(iii). Benevenga v. DiGregorio clarified.

NOT APPROVED FOR PUBLICATION
INSURANCE
BAKKE v. GONCALVES & ASSOCIATES
Appellate Division, A-5305-03T2, February 1, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17572

Order of the Commissioner of Banking and Insurance that affirmed the initial decision of the administrative law judge to revoke the individual appellant’s insurance producer’s license affirmed; the Commissioner instituted an administrative action against the individual appellant and the appellant insurance agency pursuant to the New Jersey Insurance Producer Licensing Act after the Law Division entered judgment against them for violating the New Jersey Insurance Fraud Prevention Act; contrary to the appellants’ argument on appeal, the administrative action was not barred by the entire controversy doctrine or the election of remedies doctrine because the revocation of the license must occur in an administrative proceeding and cannot occur in the Law Division.

DRUNK DRIVING
STATE v. COYNE
Appellate Division, A-4397-03T1, February 1, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17574

Conviction of driving while intoxicated affirmed; the police officer stopped the defendant’s vehicle after it crossed the double yellow line while turning and after it drifted over the line for more than 100 feet; the officer noticed an odor of alcohol emanating from the car, the defendant failed both field sobriety and HGN tests, and the defendant scored a 0.10 blood alcohol content on a Breathalyzer; the videotape of the stop was not produced to the defendant or introduced at trial; contrary to the defendant’s arguments on appeal, (1) the officer’s uncontradicted testimony established sufficient probable cause for the stop and (2) under State v. Hollander, the defendant was not unduly prejudiced by the State’s failure to retain and produce the videotape.

DRUNK DRIVING
STATE v. GANLEY
Appellate Division, A-4325-03T3, February 1, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17573

Conviction of driving while intoxicated affirmed substantially for the reasons given by the Law Division; after an accident, a police officer observed that the defendant slurred his speech and smelled of alcohol; the defendant’s blood alcohol content registered 0.14 and 0.15 percent on a Breathalyzer Model 900; the Municipal Court refused to admit the Breathalyzer results because an officer near the machine wore a radio transmitter, but it convicted the defendant on the subjective evidence; after a trial de novo, the Law Division convicted the defendant on both the subjective and the objective prongs of N.J.S.A. 39:4-50; pursuant to Romano v. Kimmelman, there was no basis for excluding the Breathalyzer results; the evidence “amply” supported the defendant’s conviction under the subjective prong of N.J.S.A. 39:4-50.


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