NEW JERSEY LAWYER

DAILY BRIEFING      02/21/2006


News Briefs

INCIDENTS LIKE CHENEY’S RARE, BUT PUNISHABLE, IN NJ
While late-night comedians and political pundits have been having a field day over Vice President Dick Cheney’s hunting accident, fish and wildlife regulators in New Jersey aren’t laughing. There are about 85,000 licensed firearms hunters regulated here and the number of incidents involving the accidental shooting of another hunter is low. The penalties for violations are potentially serious. Last year, there were only five incidents, half the prior year’s. While hunters aren’t required to report accidents, each incident the Division of Fish & Wildlife learns about is investigated to determine if charges are warranted. If so, says Karen Hershey of the Department of Environmental Protection, a summons to appear in Superior Court is issued. Anyone convicted twice within five years is prohibited from hunting for two years and certain two-time violations will result in a lifetime license revocation. 2-17-06

WEBCAST OF GAY-MARRIAGE ARGUMENTS IS A HIT
It didn’t quite have the viewership of the Super Bowl, but last week’s webcast of oral arguments at the New Jersey Supreme Court in Lewis v. Harris, the same-sex marriage case, scored 3,000 internet hits for the event, according to Winnie Comfort, a spokeswoman for the judiciary. The webcast, which went off without a hitch, featured five of the seven justices asking questions. They all looked good for the cameras: Black robes are especially flattering. 2-17-06

MEANWHILE, JERSEYANS SUPPORT MARRIAGE EQUALITY
A Zogby-Garden State Equality Poll gives New Jersey the strongest numbers for marriage equality in the history of both the state and nation. Fifty-six percent of voters here favor marriage equality, while 39 percent oppose it. And 67 percent of New Jerseyans oppose a state-constitutional ban on marriage equality; 28 percent favor such a ban. Zogby conducted the poll of 802 likely New Jersey voters Feb. 8-10 in advance of the state Supreme Court hearing in the same-sex marriage case. 2-17-06

KEEP YOUR EYE ON YOUR GROSS RECEIPTS!
For years, lawyers, architects, engineers and other professionals have been able to derail attempts in Trenton to extend the sales tax to their services. Now, though, Gov. Jon S. Corzine is considering doing, in effect, just that — through a backdoor of sorts. It’s not set in stone, but he has confirmed he’s weighing slapping a gross receipts tax on businesses. Although technically not a sales tax, the effect would be the same. Whether the governor actually follows through on such a levy probably won’t be known until next month when he unveils his proposed budget for the fiscal year that begins July 1. For now, he and advisers are trying to figure out how to make a perceived $4 billion budget hole go away, and that, in part, could mean new taxes. 2-17-06

‘DIFFERENCES’ GROUNDS SOUGHT FOR DIVORCE
Adding “irreconcilable differences” as grounds for divorce in New Jersey was a near miss in 1999, and legislators are ready to try again. Couples who’ve decided to end their marriage usually choose “extreme cruelty” as the legal grounds, and then proceed to exaggerate minor things to make it look kosher. Even if they agree to do it that way, sometimes the reaction sets off hostility where there was none before. Divorce attorneys and the New Jersey State Bar Association want to do away with such ugly documents. Opponents say it will make divorce easier and therefore more common. For the full story, see the Feb. 20 New Jersey Lawyer. 2-17-06

SHAKEDOWN 101
There are shakedowns and then there are shakedowns, but this alleged one may be the ultimate. In Florida, a middle-school gym teacher has been charged with bribery. What did that entail? Terence Braxton is alleged to have allowed his students in Pensacola to skip class if they paid him $1 a day. He resigned after a parent complained and the alleged scheme unraveled. 2-17-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, FEBRUARY 17, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, FEBRUARY 17, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, FEBRUARY 21, 2006.

NEW JERSEY COURTS ARE CLOSED ON MONDAY, FEBRUARY 20, 2006, AND NO OPINIONS WILL BE RELEASED.



APPROVED FOR PUBLICATION
WORKERS’ COMPENSATION
WOOD v. JACKSON TOWNSHIP
Appellate Division, A-3317-04T3, approved for publication February 17, 2006. (8 pages). Facts-on-Call Order No. 92857

Where workers’ compensation benefits have been reduced by an offset based on the petitioner worker’s receipt of Social Security disability benefits pursuant to N.J.S.A. 34:15-95.5, the offset ends when the Social Security disability benefits are terminated due to the petitioner’s death, and the petitioner’s dependent receives the full amount of workers’ compensation benefits.

JUDGMENTS
FIRST UNION NATIONAL BANK v. PENN SALEM MARINA, INC.
Appellate Division, A-3128-04T1, approved for publication February 17, 2006. (15 pages). Facts-on-Call Order No. 92858

In a mortgage foreclosure action, the amount of a judgment that was obtained on the note which evidenced the underlying debt does not limit the amount of the foreclosure judgment under principles of res judicata or collateral estoppel.

MEDICAID
IN RE HOSPITALS’ PETITIONS FOR ADJUSTMENT OF RATES FOR REIMBURSEMENT OF INPATIENT SERVICES TO MEDICAID BENEFICIARIES
Appellate Division, A-1158-03T3 and A-1167-03T3, approved for publication February 17, 2006. (44 pages). Facts-on-Call Order No. 92859

In proceedings that challenged the denials of the appellant hospitals’ applications for Medicaid rate increases for 1996 through 2001, the Division of Medical Assistance and Health Services did not err when it calculated “marginal loss” (1) by including as revenue the supplemental funds that the hospitals received for serving a disproportionate share of the State’s indigent population and (2) by using actual cost data from the hospitals’ Medicare Cost Reports rather than projected data from an unaudited report.

CRIMINAL TRIALS
STATE v. DISPOTO
Appellate Division, A-146-05T5, approved for publication February 17, 2006. (17 pages). Facts-on-Call Order No. 92860

In a prosecution for CDS offenses, the defendant’s post-arrest inculpatory statement and the drugs and drug paraphernalia that the police seized pursuant to a search warrant were properly suppressed. The statement had to be excluded because the Miranda warnings that were issued to the defendant in circumstances that did not constitute custodial interrogation or formal arrest did not vitiate the need to reissue the warnings when he was arrested hours later. In light of the evidence developed at the Miranda hearing, the trial court did not err by reconsidering its decision that there was probable cause for the search warrant, and the drugs and paraphernalia were fruits of the poisonous tree because the only evidence that the police relied on to obtain the search warrant was the defendant’s inculpatory statement.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
MEANEY v. WICHROWSKI
Appellate Division, A-2427-04T3, February 17, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19254

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; before the accident, the plaintiff was diagnosed with “injuries to the lumbar spine, degenerative disease and L5, S1 herniated nucleus pulposus with multiple bulges and radiculopathy”; the plaintiff alleged that his injuries were exacerbated by the accident; the trial court determined that the plaintiff had failed to provide the comparative analysis required by Polk v. Daconceicao and had failed to demonstrate a “significant impact” on his life; however, the serious-life-impact requirement was eliminated by DiProspero v. Penn, and Davidson v. Slater recently held that the Polk requirement no longer applies on a motion for summary judgment; instead, the comparative analysis must be presented at trial as part of the causation analysis.

VERBAL THRESHOLD
STEFANO v. SZALAY
Appellate Division, A-4549-04T5, February 17, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19255

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court concluded that the limitations on the plaintiff’s life were not “sufficiently serious” to satisfy the second prong of the Oswin v. Shaw test; reversal and remand were required because DiProspero v. Penn and Serrano v. Serrano held that AICRA eliminated the serious-life-impact requirement of Oswin; the defendants asserted that the trial court did not evaluate the plaintiff’s proofs as to the permanent injury requirement, but it appeared to the Appellate Division that the trial court had reviewed the evidence and had resolved that issue against the defendants; nonetheless, the defendants could seek clarification on remand.

TORT CLAIMS ACT
DEMBY v. STATE OF NEW JERSEY
Appellate Division, A-5572-04T2, February 17, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19256

Denial of the plaintiff’s May 11, 2005 motion for leave to file a late notice of claim under N.J.S.A. 59:8-9 affirmed; the plaintiff alleged that he was wrongfully arrested and incarcerated on July 18, 2004 for robberies that were reported on July 15 and 17; in December 2004, the plaintiff was indicted for the robberies; in his civil action, the plaintiff argued on appeal that he did not learn of the circumstances of his arrest until he examined the discovery from his criminal case, which included the incident reports that the defendant police officer had filed on July 16 and 17, 2004; however, the plaintiff’s motion papers (1) did not indicate when he first received the incident reports, (2) did not establish “extraordinary circumstances” to justify his failure to file a notice of claim within 90 days under N.J.S.A. 59:8-8 or his failure to seek leave to file a late notice of claim “within a reasonable time thereafter,” and (3) did not state that the defendants were not “substantially prejudiced” by his failure to file a timely notice of claim.

WORKERS’ COMPENSATION
TENTLE v. COLON CONSTRUCTION, INC.
Appellate Division, A-3568-02T2, February 17, 2006, not approved for publication. (15 pages). Facts-on-Call Order No. 19251

Workers’ compensation award to the petitioner affirmed; the petitioner, an illegal alien, was rendered a paraplegic when he severed his spinal cord in a fall while working for a roofing subcontractor for the respondent corporation; the judge of compensation awarded the petitioner temporary disability benefits, found him 100 percent permanently and totally disabled and entitled to weekly compensation for “450 weeks and continuing,” and held the corporation and the respondent corporate officers liable for his past and future medical bills; contrary to the respondents’ appellate arguments, (1) service of process on one of the corporate officers was not defective, (2) the respondents were not deprived of the opportunity to establish who were the principals of the corporation, (3) there was no evidence that the attorney who first appeared for the respondents was on a limited retainer, and, even if he had a conflict of interest, the proper remedy was a separate action against him, (4) there was no evidence that the petitioner’s work was not in connection with the business of the corporation, and (5) the petitioner’s injuries met the test for total permanent disability.

PARENT AND CHILD
MASSARO v. MASSARO
Appellate Division, A-5453-04T1, February 17, 2006, not approved for publication. (10 pages). Facts-on-Call Order No. 19253

Post-divorce-judgment order that denied the plaintiff mother’s cross-motion to compel the defendant father to provide her with authorizations for the release of his medical and psychiatric records as might be needed for the medical care or treatment of the parties’ children but that provided for the possible future release of the records affirmed; the mother claimed that the father had told her that he had been diagnosed with mental disorders; the father opposed the cross-motion on grounds of invasion of privacy, although he indicated that he was willing to cooperate with any doctors who treated the children; there was no evidence that indicated a current or future medical need for the disclosure of the father’s records and, thus, there was no evidence that the nondisclosure had a current impact on the children; the order protected the children should the need for such records arise and therefore considered the best interests of the children without unnecessarily infringing on the father’s statutorily protected right to privacy.

DRUNK DRIVING
STATE v. YENGO
Appellate Division, A-4354-04T5, February 17, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19252

Conviction following a trial de novo for refusal to submit to a Breathalyzer test reversed and remanded; the Municipal Court found the defendant guilty of speeding, acquitted her of driving while intoxicated, and found her guilty of refusal under N.J.S.A. 39:4-50.2; the Law Division agreed with the Municipal Court that the defendant’s “conduct constituted a refusal” because her response to the State Trooper’s request that she take a Breathalyzer test — that she first wanted to use the bathroom — fell “substantially short of an unequivocal, unconditional assent”; after the trial de novo, the New Jersey Supreme Court held in State v. Cummings that the proper burden of proof for Breathalyzer refusal cases is beyond a reasonable doubt and that this standard applies to all pending refusal cases; reversal and remand to the Law Division were necessary because the defendant apparently was convicted under a lesser standard.

ADMINISTRATIVE LAW
SANTIAGO v. BOARD OF TRUSTEES OF THE POLICE AND FIREMEN’S RETIREMENT SYSTEM
Appellate Division, A-5702-04T5, February 16, 2006, not approved for publication. (15 pages). Facts-on-Call Order No. 19249

Law Division injunction that barred the defendant Board of Trustees of the Police and Firemen’s Retirement System from reviewing the pension status of the plaintiff police director of the plaintiff City reversed, and the matter remanded for dismissal; although Rule 2:2-3(a)(2) vests exclusive jurisdiction to review final administrative actions in the Appellate Division, the Law Division decided that it could proceed (1) because Rule 2:2-3(a)(2) did not apply in the absence of a final administrative action and (2) because the exhaustion of administrative remedies was not required; as to the former reason, the Appellate Division has jurisdiction even in the absence of administrative action because Rules 2:2-3(a)(2) and 2:2-4 contemplate that every proceeding to review administrative action or inaction must occur by appeal to the Appellate Division; as to the latter reason, the Law Division erred by determining that exhaustion was not required based on its conclusions that the issue presented was purely a question of law, that irreparable harm would result if exhaustion was required, and that the Board did not have primary and exclusive jurisdiction.

HUSBAND AND WIFE
DUBROW v. DUBROW
Appellate Division, A-6549-03T1, February 16, 2006, not approved for publication. (9 pages). Facts-on-Call Order No. 19248

Letter opinions that awarded alimony to the plaintiff ex-wife following a bench trial affirmed; the trial court determined (1) that the defendant ex-husband’s alimony obligation was $227,000 per year, (2) that alimony would terminate when the ex-husband reached age 70, and (3) that the ex-husband’s retirement at age 62 or later would constitute changed circumstances; although changed circumstances usually must be dealt with when they occur and the aspects of the opinions that addressed the effects of the husband’s turning 70 or retiring thus could be considered premature, it was reasonable for the trial court to conclude that the ex-wife would be capable of supporting herself at the appropriate time; the Appellate Division interpreted the parties’ “various assertions of error as advancing a bottom-line argument” that the trial court could have adjusted the economic balance between them more equitably, but the Appellate Division was convinced that the trial court had “achieved essential fairness.”

FLORENCE TOLLGATE CONDOMINIUM ASSOCIATION, INC. v. JOE ORDINI’S POOLS & SPAS, INC.
Appellate Division, A-5833-04T5, February 16, 2006, not approved for publication. (10 pages). Facts-on-Call Order No. 19250

Final judgment of the Law Division that confirmed an arbitration award for the plaintiff condominium association affirmed in an action arising from a contract to build a swimming pool; the arbitrator determined that the defendant pool company breached the contract and violated the Consumer Fraud Act; the defendant established no grounds under N.J.S.A. 2A:24-8 for vacating the award; the defendant argued that the arbitrator lost jurisdiction when he failed to issue an award within the time period agreed to by the parties, but that argument was waived because the defendant did not object to the delay until the arbitrator rendered the award for the plaintiff; the defendant also argued that the arbitrator exceeded his authority by deciding the CFA claims, but the Appellate Division concluded that the contract’s “broad arbitration provisions” encompassed claims under the CFA, and it rejected the defendant’s argument that the evidence did not support a finding that the CFA violations caused the plaintiff’s damages.


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