NEW JERSEY LAWYER

DAILY BRIEFING      02/08/2005


News Briefs

MINORITY PROGRESS SLOWING, SAYS ABA REPORT
Minority entry into the legal field has slowed since the growth period of the 1980s through the mid-1990s, with minorities faring significantly worse in law than other professions, according to “Miles to Go: Progress of Minorities in the Legal Profession,” a new report by the American Bar Association’s Commission on Racial and Ethnic Diversity in the Profession. After law school graduation, minorities are less likely than whites to obtain judicial clerkships or enter private practice, and more likely to take government or public interest jobs. Fewer than 4.4 percent of partners in the nation’s 250 largest law firms and only 4.3 percent of corporate general counsel are minorities, and minority women are almost completely excluded from top private sector jobs, reports Elizabeth Chambliss of New York Law School, who prepared the report. Overall, minorities comprise less than 9.7 percent of lawyers, compared to 20.8 percent of accountants and auditors, 24.6 percent of physicians and surgeons, and 18.2 percent of college and university teachers, according to U.S. Census figures cited in the report. 2-7-05

STEEN NOMINATED AS STATE BAR SECRETARY
On his third try for the post, Lawrenceville attorney Richard H. Steen has been chosen for the secretary slot of the New Jersey State Bar Association. The organization’s nominating committee selected him from among four contenders. The position is the first rung on the ladder to the association’s presidency. Steen, a 1975 Seton Hall University School of Law graduate, is a sole practitioner specializing in construction law and alternative dispute resolution. He’s been a State Bar trustee six years and has chaired its Legislative Committee, a medical malpractice task force, the Construction and Public Contract Law Section and the Dispute Resolution Section. He could be challenged if another candidate submits a nominating petition by March 18, though such challenges are rare. Otherwise, Steen can expect to be elected to the post at the State Bar’s annual meeting in May in Atlantic City. 2-7-05

PUBLIC DEFENDERS AS HABERDASHERS?
While clothes don’t make the person, they sure do help in court. Public defenders work for people who don’t have enough money for a lawyer, and it follows that often their clients don’t have decent clothes to wear to court. So rather than let their clients wear shorts and T-shirts before judges and juries, some PD’s keep a closet of spare suits and dresses. Janet Levey, principal investigator for the Camden County Public Defender’s Office, has been taking donations for more than 20 years. “Most of the time, you’re presenting an inner-city person to a suburban jury and, like it or not, appearance does matter,” Levey told The Philadelphia Inquirer. Some of the clients, Levey said, haven’t had nice clothes since grade school and sometimes, after their court appearance is over, they ask to keep the clothes. She always says yes. 2-7-05

HIGH COURT TO UMPIRE VENDOR LIABILITY
The New Jersey Supreme Court next Monday will review an Appellate Division ruling holding a baseball fan bonked by a foul ball while buying beer in the ballpark’s concession area can sue over the incident. The key was that the fan was not in the stands watching the action, but buying his brew in an area where, by its nature, spectators would be distracted, said the appeals court in Maisonave v. Newark Bears. The high court’s ruling could impact the placement and protection of concession areas and carts at ballparks, arenas and other sports facilities statewide. 2-7-05

PANEL TO DISCUSS SENTENCING GUIDELINES AT SETON HALL
“Federal Sentencing Guidelines: What Happens Now?” a panel focusing on the recent U.S. Supreme Court decisions in U.S. v. Booker and U.S. v. Fanfan, will be held at 6 p.m. Feb. 10 in the auditorium at Seton Hall University School of Law in Newark. Panelists include Seton Hall Law Professor Edward A. Hartnett, Associate Professor R. Erik Lillquist, Assistant U.S. Attorney and Adjunct Professor Ricardo Solano Jr., and Bruce Merrill, the Portland attorney who represented Bruce Fanfan. The event is sponsored by the law school’s Legislative Bureau and Criminal Law Society. 2-7-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, FEBRUARY 7, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON


APPROVED FOR PUBLICATION
EMPLOYMENT LAW
COMPREHENSIVE PSYCHOLOGY SYSTEM, P.C. v. PRINCE
Appellate Division, A-2761-03T5, approved for publication February 7, 2005. (7 pages). Facts-on-Call Order No. 92298

Enforceability of a restrictive covenant between the plaintiff corporation and the defendant licensed psychologist was barred (1) by N.J.A.C. 13:42-10.16, which was adopted by the Board of Psychological Examiners and which restricts psychologists from entering to restrictive covenants, and (2) as a matter of public policy when it might interfere with an ongoing course of treatment and a patient’s right to continued treatment from the psychologist. Distinguishing Karlin v. Weinberg.

NOT APPROVED FOR PUBLICATION
COMMERCIAL TRANSACTIONS
FLEET NATIONAL BANK v. TUCKMAN
Appellate Division, A-3442-03T2, February 7, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17589

Summary judgment for the plaintiff bank, holding the defendant corporation and the defendant guarantors jointly and severally liable on a note, affirmed substantially for the reasons expressed by the Chancery Division; the defendants violated their loan and security agreement with the bank by making an advance to one of the guarantors that exceeded $25,000, the corporation missed a payment to the bank, and it later was evicted from its warehouse; the bank’s appraiser eventually found that the corporation’s inventory was “virtually worthless,” and the bank informed the defendants that it would relinquish the inventory to the landlord in two days if the defendants did not purchase it; contrary to the argument of one of the guarantors on appeal, the Chancery Division correctly held that there were no issues of material fact as to the bank’s impairment of the collateral; moreover, the defendants “expressly and unequivocally waived” the defense in their guarantee.

REAL PROPERTY
RUGGIERI v. 465 ALVINE TRUST-PHILIP RUZIC
Appellate Division, A-1447-03T5, February 7, 2005, not approved for publication. (24 pages). Facts-on-Call Order No. 17592

Judgment for possession and an immediate warrant of removal dated October 23, 2003 reversed for lack of procedural due process and remanded; the plaintiff seller and the defendant purchaser entered into an installment sale land contract for residential property in Pittsgrove in January 1998, which provided for monthly payments, that the purchaser was responsible for paying property taxes and maintaining insurance, and that all payments made would be considered liquidated damages in the event of the purchaser’s default; in June 2003, the trial court held the contract enforceable but dismissed the seller’s landlord-tenant complaint, which alleged failure to pay property taxes for two years and failure to maintain insurance, because the seller had failed to give the 90 days’ notice to cure required by the contract; because the seller’s October 2003 order to show cause and verified complaint did not conform with Rule 4:67-2(b), the trial court should not have granted removal in summary proceedings.

WORKERS’ COMPENSATION
LOPEZ v. BELL ATLANTIC/VERIZON
Appellate Division, A-1692-03T5, February 7, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17591

Division of Workers’ Compensation judgment awarding the petitioner 30 percent permanent partial/total disability for psychiatric injuries affirmed; the petitioner’s injuries arose from a one-hour meeting with the respondent’s Equal Employment Opportunity Commission officer, who was investigating an e-mail message that the petitioner had sent; the petitioner’s expert testified that the petitioner suffered from major depression and post-traumatic stress disorder resulting from the meeting, and the judge of compensation found that the contrary testimony of the respondent’s expert was not credible; contrary to the respondent’s argument on appeal, there was sufficient credible evidence in the record to support the award.

NEGLIGENCE
DEASE v. DIETRICH
Appellate Division, A-1494-03T3, February 7, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17590

Summary judgment for the defendant in an automobile negligence action affirmed; the plaintiff turned left at an intersection after he was waved into the intersection by the driver of a truck that was stopped in a nontravel lane, and the plaintiff’s vehicle collided with the defendant’s when it crossed the defendant’s lane of travel during the turn; neither the plaintiff nor his passenger had seen the defendant’s vehicle before the collision; the plaintiff failed to prove circumstances from which a jury could have drawn an inference that the defendant had breached his duty of care because the plaintiff did not submit any evidence to support his claims that the defendant had been driving too fast for conditions or that the defendant had failed to make proper observations.

CIVIL PROCEDURE
ZAREMBA v. LAURISTON
Appellate Division, A-5705-03T5, February 7, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17587

Orders denying the plaintiff’s motion to reinstate her automobile negligence complaint and denying reconsideration reversed; the plaintiff, who was injured in an automobile accident on September 30, 2000, filed her complaint on August 8, 2002 to toll the statute of limitations, but she decided not to serve the complaint on the defendant because she did not possess the medical certification required by AICRA; the complaint was administratively dismissed on March 1, 2003 for lack of prosecution, the plaintiff retained new counsel on June 29, 2001, and the complaint was not served until February 26, 2004; the complaint should have been reinstated (1) because the plaintiff’s new counsel sought to obtain the plaintiff’s medical records almost immediately after being retained, (2) there was no evidence that the defendant would be prejudiced by the reinstatement, and (3) Casinelli v. Manglapus held that the failure to provide a medical certification does not require a dismissal with prejudice or without prejudice.

HUSBAND AND WIFE
JACKSON v. JACKSON
Appellate Division, A-1617-03T5, February 7, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17593

Post-divorce-judgment orders (1) that required the plaintiff father to reimburse the defendant mother for one-half of their daughter’s net college expenses for the fall 1999 through spring 2002 terms, (2) that denied the plaintiff’s motion to vacate the college expenses order, (3) that denied the plaintiff’s request for a plenary hearing on the issue of college expenses, and (4) that denied the defendant’s motion for reconsideration of the parties’ pro rata share of college expenses affirmed; contrary to the plaintiff’s primary contention on appeal, the motion judge did not err by not conducting a plenary hearing because the only dispute arising from the parties’ conflicting affidavits concerned the relationship between the plaintiff and his daughter, which was not material to the Newburgh v. Arrigo analysis.

ADMINISTRATIVE LAW
IN RE SUSPENSION OR REVOCATION OF THE LICENSE OF FRIEDMAN TO PRACTICE PHARMACY IN THE STATE OF NEW JERSEY
Appellate Division, A-6596-03T5, February 7, 2005, not approved for publication. (18 pages). Facts-on-Call Order No. 17588

Final decision of the Board of Pharmacy finding that the appellant pharmacist had committed gross negligence, suspending his license for five years with the last two years to be stayed and served as a probationary term, and imposing more than $84,000 in costs affirmed as to the Board’s finding of gross negligence and suspension but remanded for reconsideration of the amount of costs; the prescription was for a chemotherapy drug that the patient was supposed to take once every six weeks; the appellant misinterpreted the prescription as requiring the patient to take the drug daily for six weeks; the record supported a finding of gross negligence, and the Board did not abuse its discretion by imposing the suspension; however, the Board erred by imposing more than $84,000 in costs without giving the appellant a fair opportunity to conduct discovery or to otherwise challenge the reasonableness of the application for costs and without considering all of the factors that applied to the imposition of costs.


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