NEW JERSEY LAWYER

DAILY BRIEFING      02/08/2006


News Briefs

SPECIAL MASTER ORDERS ALCOTEST EVIDENCE RELEASED
The special master appointed by the New Jersey Supreme Court to review whether the state’s new DWI breath-test machines are scientifically reliable has ordered an extensive sharing of information including software the manufacturer has claimed is privileged. Retired Appellate Judge Michael Patrick King, serving on recall and named special master in State v. Chun, issued a 10-page discovery order. Among the items that must be released are all Alcotest 7110 tests done in Middlesex County in 2005 and all documents the state or the manufacturer has in connection with the machine and how it works. All letters, memos or other correspondence between state officials and the maker, Drager Safety, must be released, King said. He also ordered that the software must be downloaded so defense attorneys challenging the device’s reliability can analyze “how the software works under divergent and varied circumstances.” The judge denied the claim of privilege, “subject to the terms of a protective order to be submitted by the state or the manufacturer, for court approval.” Previously, defense lawyers’ efforts to obtain the software were denied. 2-7-06

FAMILY OF MAN KILLED IN EXPLOSION SETTLES SUIT
The family of a welder killed in a 2001 explosion of a fuel tanker in Paterson has settled for $500,000 its suit against the company that owned the tanker. Andrew Giordano was killed when his spark ignited fuel oil that he hadn’t been advised was in the tanker he was working on with welding equipment. In Giordano v. Hy-Grade Oil, Arthur N. Chagaris of Beattie Padovano in Montvale represented the welder’s family while Radames Velazquez Jr. of Gold, Albanese, Barletti & Velazquez in Jersey City handled the case for the defendant. 2-7-06

PORITZ’S DEFINING MOMENT
It shapes up as perhaps the most widely watched case of the decade — and for good reason. The eventual decision in the same-sex-marriage challenge being argued Feb. 15 in the New Jersey Supreme Court not only will affect gays, lesbians and society as a whole, but the institution of the court itself — along with the reputation and legacy of Chief Justice Deborah T. Poritz as she nears mandatory retirement in October. The challenge by six same-sex couples in Lewis v. Harris presents the following questions: Will the court have the courage to say the New Jersey Constitution allows same-sex marriage? Will the court have the courage to restrain itself in the face of the hopes of people who claim a basic civil right? Is the “safe” route politically — one of restraint — the correct route legally? These are some of the questions in an article in the Feb. 6 New Jersey Lawyer. To read the full piece at no charge, visit New Jersey Lawyer’s website, www.njlnews.com.

JUDGE’S SUPER-BOWL CHEERING BOMBS
The prosecutor, court personnel and the family of a manslaughter victim are still irked by a judge’s starting of a sentencing hearing by leading everyone in the courtroom with a cheer for the Seattle Seahawks. Taking the bench last Friday, Pierce County Judge Beverly G. Grant in Tacoma asked everyone in the courtroom to say, “Go Seahawks!” Unhappy by the unenthusiastic response, she told them to do it again. She then began the proceeding, hearing statements from prosecutors, defense attorneys, relatives of the slain man and an apology from the defendant. She sentenced him to 13½ years in prison. The slain mother’s stepmother said she was very offended, noting Super Bowl Sunday was the one-year anniversary of the fatal shooting of Tino Patricelli in a fight outside a bar. Prosecutors and court personnel complained later, but the judge was unapologetic. “The tension was very high, and I thought it would be a way of people just thinking of something else and releasing it. It was a diversion tactic to bring unison in the group,” she said. 2-7-06

PROPERTY CONDEMNATION VIOLATES CHURCH-STATE SEPARATION
A Philadelphia agency violated the separation of church and state when it condemned a woman’s home to help a religious organization build a private school. That’s the conclusion of a Pennsylvania appeals court in Harrisburg, which ruled 4-3 that the Philadelphia Redevelopment Authority shouldn’t have condemned Mary Smith’s home in a blighted city neighborhood in 2003. The court said the seizure by eminent domain to build the Hope Partnership for Education, comprised of Roman Catholic groups, is unconstitutional. 2-7-06

GOVERNMENT WATCHDOG ACCUSES PENNSY LAWMAKERS
Common Cause/Pennsylvania has expanded its lawsuit in the legislative and judicial pay raise controversy, accusing lawmakers of trading court funding in exchange for favorable Supreme Court decisions in cases important to the legislators. While a spokesman for Chief Justice Ralph Cappy is calling the claims “preposterous” and “reckless,” former legislator Edward H. Krebs gave the government watchdog group a sworn statement describing a June 1999 meeting during which then-House Majority Leader John Perzel pressed Republican legislators to give major funding for the court system so that cases the legislators cared about would go their way. The new allegations are contained in an updated filing amending a federal lawsuit filed in October seeking to block the pay increases for legislators, state judges and governor’s office personnel. After a public outcry, the legislators rescinded the pay raises. 2-7-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, FEBRUARY 7, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, FEBRUARY 7, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, FEBRUARY 8, 2006.


APPROVED FOR PUBLICATION
PARENT AND CHILD
DOLCE v. DOLCE
Appellate Division, A-1561-04T2, approved for publication February 7, 2006. (10 pages). Facts-on-Call Order No. 92843

On the defendant father’s post-divorce-judgment motion, the parties’ 18-year-old son was improperly declared emancipated in light of the provision in the parties’ property settlement agreement that established reaching age 23 as an emancipation event. Although a parent cannot bargain away a child’s right to support because the right belongs to the child and not the parent, neither the law nor public policy prevents a parent from freely undertaking to support a child beyond the presumptive legal limits of parental responsibility.

REAL PROPERTY
COMMITTEE FOR A BETTER TWIN RIVERS v. TWIN RIVERS HOMEOWNERS’ ASSOCIATION
Appellate Division, A-4047-03T2, approved for publication February 7, 2006. (67 pages). Facts-on-Call Order No. 92844

The expressive rights guarantees of the New Jersey Constitution apply to those who govern a community association in setting and administering standards for the community. The normative standards of the Planned Real Estate Development Full Disclosure Act apply to community associations that were founded before the enactment of the Act and its amendments, and the Act’s exemption provision is narrowly construed. Standard-setting and standard-applying exercises that do not implicate constitutional expressive rights guarantees but that bear instead on operational features of a community association are properly evaluated under statutory standards, the business judgment rule, and assessments of the parties’ contractual rights and interests.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
MURPHY v. MASON
Appellate Division, A-4925-04T5, February 7, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19200

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the plaintiff’s expert found lumbar radiculopathy based on an EMG, found spasms based on a physical examination, and asserted that the plaintiff’s injuries were permanent; the trial court determined that the plaintiff’s injuries were not sufficiently serious to satisfy the verbal threshold, but that reason no longer could support the entry of summary judgment in light of the New Jersey Supreme Court’s decisions in DiProspero v. Penn, Serrano v. Serrano, and Juarez v. J.A. Salerno & Sons, Inc.; the plaintiff was required to demonstrate with objective evidence only that she had suffered “a permanent injury within a reasonable degree of medical certainty.”

TORT CLAIMS ACT
JOHNSON v. HOUSING AUTHORITY OF THE CITY OF NEWARK
Appellate Division, A-961-04T3, February 7, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19201

Denial of the plaintiff’s motion to file late notices of claim under the Tort Claims Act with the defendant City and the defendant housing authority affirmed in an action arising from an attack on the plaintiff by four unknown assailants in a public housing complex; the 90-day period for filing a notice of claim under N.J.S.A. 59:8-8 expired on December 30, 2003, but the plaintiff filed notices of claim with the City on July 12, 2004 and with the housing authority on August 18; in his August 20 motion to file late notices of claim under N.J.S.A. 59:8-9, the plaintiff alleged that “extraordinary circumstances” had prevented him from filing timely notices of claim; however, the Appellate Division rejected the plaintiff’s reasons, which were (1) that he was ignorant of the 90-day limitation, (2) that he was incapacitated by his physical injuries, (3) that he had suffered psychological trauma, and (4) that he could not obtain the medical and police records that he needed to file the notices of claim.

CIVIL PROCEDURE
COOPER LEVENSON APRIL NEIDELMAN & WAGENHEIM, P.A. v. V.J. FLANDERS CONDOMINIUM ASSOCIATION, INC.
Appellate Division, A-1421-04T1, February 7, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19202

Special Civil Part orders that denied the defendant former client’s motions to vacate a default judgment and to obtain leave to file its answer and counterclaim out of time and that granted the plaintiff law firm’s motion for the turnover of funds affirmed in an action to recover attorney’s fees; the Special Civil Part concluded that vacation of the default judgment was inappropriate because, although the defendant had established excusable neglect for its failure to timely file its answer and counterclaim, it had no meritorious defense to the plaintiff’s claim; the Appellate Division disagreed with the defendant’s arguments on appeal that it did not have to establish a meritorious defense because there was no timely notice of the default judgment under Rule 6:6-3(e) or, in the alternative, that it had established a meritorious defense.

PUBLIC EMPLOYEES
IN RE BONAFIDE
Appellate Division, A-1658-04T1, February 7, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19203

Final decision of the Merit System Board that removed the name of the appellant sheriff’s officer sergeant from the eligible list for the position of sheriff’s officer lieutenant affirmed; pursuant to a January 2003 settlement of disciplinary action arising from his misuse of the sheriff’s fax machine and telephone, the appellant received a six-day suspension, which was a major discipline; in December 2003, the respondent County asked for the appellant’s name to be removed from the eligible list based on his “unsatisfactory employment history”; it was not arbitrary, capricious, or unreasonable for the Board to conclude that the appellant’s recent employment history negatively affected his ability to perform the supervisory position that he sought and justified the removal of his name from the eligible list; the Board properly determined that a hearing was not required because there was no material issue of disputed fact.

NEGLIGENCE
PALMER v. KOVACS
Appellate Division, A-956-04T5 and A-1257-04T5, February 6, 2006, not approved for publication. (13 pages). Facts-on-Call Order No. 19197

Denial of the defendants’ motion for summary judgment based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed, but denial of the defendants’ post-verdict motion for a new trial or for remittitur remanded for a statement of reasons; as to the summary judgment motion, (1) the defendants conceded that the former serious-impact requirement no longer applied in light of the New Jersey Supreme Court’s decisions in DiProspero v. Penn and Serrano v. Serrano and (2) there were genuine issues of material fact concerning the permanency and causation of the plaintiff’s neck and back injuries; as to the post-verdict motion, there were no detailed findings to support the conclusion that the $460,000 jury verdict in a trial on damages only was not a “miscarriage of justice,” and remand was required for the trial court to reconsider the motion and to supply an amplified statement of reasons under Rule 1:7-4(a).

DOMESTIC VIOLENCE
PEREIRA v. PEREIRA
Appellate Division, A-6055-04T1, February 6, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19198

Final domestic violence restraining order against the defendant husband affirmed; during an altercation, the husband picked up the plaintiff wife and put her inside his truck, and he grabbed the parties’ daughter and shoved her into the house; a temporary restraining order was issued based on the wife’s initial complaint, which described only the husband’s actions toward the daughter; at the initial hearing on the FRO, the wife obtained a continuance to amend the complaint to describe the husband’s conduct toward her and prior incidents; when the hearing resumed, the husband’s attorney acknowledged that he had received the amended complaint and was prepared to proceed, and he waived any objection to beginning the hearing anew; the husband asserted that the wife had lied when she obtained the TRO, but the wife credibly testified that she had initially misunderstood the question about what the husband had done; the trial court did not err by allowing the continuance and the amended complaint.

CRIMINAL TRIALS
STATE v. KUK
Appellate Division, A-2635-04T2, February 6, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19199

Conviction following a trial de novo of resisting arrest affirmed; despite being asked to leave, the defendant had remained on private property; after a police officer informed the defendant that he was under arrest and tried to take him into custody, the defendant pulled away and had to be physically subdued and handcuffed; the record supported the Law Division’s conclusion that the defendant had resisted arrest; although the Law Division vacated the defendant’s Municipal Court conviction of disorderly conduct with the purpose to cause public inconvenience, annoyance, or alarm, the record supported the finding that the officer had acted under the color of his official authority and had announced the arrest when he attempted to remove the defendant from the premises.


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