NEW JERSEY LAWYER

DAILY BRIEFING      02/09/2005


News Briefs

PUBLIC ADVOCATE BILL MOVES TO SENATE APPROPRIATIONS COMMITTEE
Legislation to resurrect the Department of the Public Advocate, dissolved in 1994 after 20 years as a government watchdog, is headed to the state Senate’s Budget and Appropriations Committee. The State Government Committee voted to restore the department as part of acting Gov. Richard Codey’s effort to restore trust in state government. Under the bill, the public advocate will be appointed by the governor with the consent of the Senate to serve during the governor’s term of office. The department would include seven divisions: public interest, citizen relations, the elderly, children, the developmentally disabled, ratepayer and administration. Supported by a wide range of public-interest groups, the legislation is opposed by the Insurance Council of New Jersey, which argues the ratepayer advocate should not be included in a new department since the industry is closely regulated by the Department of Banking and Insurance. 2-8-05

OAL JUDGE RETIREMENT BILL NUDGED ALONG
A second Assembly committee’s nod has cleared the way for a lower house vote on a bill that would be a retirement boon to the state’s Office of Administrative Law judges. They’re aiming for the same deal as Superior Court and workers compensation judges — 75 percent of salary after as little as 10 years, depending on age. It now takes an OAL judge more than 40 years to reach that percentage. Under the current system, these executive branch judges with 10 years at age 70 could expect a $21,790 annual pension. Under the legislation, that would climb to nearly $90,000. The Assembly Appropriations Committee Monday moved the bill and with the approval in October of the Assembly State Government Committee, A-2265 is on its way to the full Assembly for a floor vote. The Senate version, S-286, still is in committee. The measure has the support of the New Jersey State Bar Association. 2-8-05

BANKRUPTCY LAWYERS JOIN FOX ROTHSCHILD
Atlantic City-based Fox Rothschild, a full-service law firm with more than 280 lawyers in New Jersey, Pennsylvania and Delaware, has acquired New York-based Geron & Associates. The four New York attorneys, who have concentrated in the bankruptcy field more than a decade, will join Fox Rothschild’s financial services group to provide specialized bankruptcy, creditors rights and corporate reorganization services. That office will remain in New York. 2-8-05

BILL TO FUND PROSECUTOR’S OFFICES ADVANCES
Legislation that would require the state to fund prosecutor’s offices in Essex, Hudson, Mercer and Camden counties headed to a vote by the full Assembly, after passing the lower house Appropriations Committee by a 7-4 vote. The measure, which initially required a complete state takeover of the four offices, had been stalled by opposition from unions representing assistant prosecutors and investigators, fearing their benefits and collective bargaining rights would be weakened. The opposition was dropped after negotiations resulted in a compromise allowing employees to continue to negotiate with the counties, even though the state will be paying for the offices. The bill was prompted by the dire situation of the Essex County Prosecutor’s Office, which handles the highest volume of cases statewide but has lower salaries and fewer resources than many other counties. 2-8-05

WINDFALL MORE LIKE ‘PERFECT STORM’
Ben Waldrep announced in late 2000 that he would give his Manhattan Beach, Calif., house away to the person who paid the entry fee and wrote the best essay about why he or she wanted to live there. But after the contest stirred up controversy that convinced a jury the whole enterprise was bogus, Waldrep ended up the loser. Jurors apparently intended to have the 1,800 contest entrants split $1 million in punitive damages — but they accidentally inserted the pesky word “each” before the $1 million. It’s unlikely they’ll see anything like that much money, though. Once the jurors provide declarations of their intent, it’s fairly certain the judge will correct the mistake. 2-8-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, FEBRUARY 8, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, FEBRUARY 8, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, FEBRUARY 9, 2005.


APPROVED FOR PUBLICATION
REAL PROPERTY
MARIONI v. 94 BROADWAY, INC.
Appellate Division, A-6129-02T3, approved for publication February 8, 2005. (45 pages). Facts-on-Call Order No. 92303

The dismissal of the plaintiff buyer’s claim for specific performance of a contract to purchase real property was error (1) because there were questions of fact about the propriety of the defendant seller’s attempt to set a time of the essence closing date, (2) because, in contracting with and conveying to another, the seller could not legitimately believe that the buyer had forfeited his contractual rights by failing to appear for closing when the seller had stated its refusal to fully perform its own contractual obligations, and (3) because the seller waived its right to insist on the buyer’s performance at the purported time of the essence closing by later agreeing to a new closing date.

PUBLIC EMPLOYMENT
IN RE HRUSKA
Appellate Division, A-1109-03T1, approved for publication February 8, 2005. (14 pages). Facts-on-Call Order No. 92304

An appointing authority may not use the “Rule of Three” to bypass a qualified candidate on a civil service certified appointment list solely because of an unannounced, secret eligibility requirement that excludes the candidate from any real merit and fitness consideration or comparison with other candidates on the list.

IDENTIFICATION
STATE v. JANOWSKI
Appellate Division, A-4803-03T3, approved for publication February 8, 2005. (14 pages). Facts-on-Call Order No. 92305

The trial court erred by suppressing an out-of-court photographic identification by holding that the computerized photographs used should have been preserved and recorded.

NOT APPROVED FOR PUBLICATION
CIVIL PROCEDURE
GENERA v. BIG PANTRY SUPERMARKET
Appellate Division, A-4084-03T2, February 8, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17595

Order that vacated a default judgment entered against “Big Pantry Supermarket” affirmed, but orders that denied the plaintiff’s motion to amend his complaint and that granted summary judgment for the intervenor insurer and the individual intervenors reversed and remanded; the plaintiff slipped and fell on ice and snow on the sidewalk in front of the “Big Pantry Supermarket”; the individual intervenors were the principals of Big Pantry Supermarket, Inc., which had ceased to exist before the plaintiff’s accident, and they had sold the trade name “Big Pantry Supermarket” before the accident to another corporation, which was operating the supermarket when the plaintiff fell; the default judgment was invalid because it was entered against an entity that did not exist when the plaintiff fell; summary judgment denying the plaintiff’s motion to amend the complaint was improper because it was not granted for party defendants, and the plaintiff should have been permitted to amend his complaint to name additional defendants under the rule for fictitious names, Rule 4:26-4.

PARENT AND CHILD
FALCONE v. CIPRIANO
Appellate Division, A-4826-03T2, February 8, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17594

Family Part orders that provided that the parties’ daughter be raised under the religion of the defendant mother and that denied the plaintiff father’s motion for a transfer of custody affirmed; the defendant lived in Secaucus when the parties executed the 1998 support and parenting agreement, which made the defendant the primary residential custodial parent; the daughter had attended a day care facility in Matawan that was run by the plaintiff’s family, but she had to leave day care because of her age; the daughter’s departure from day care was not a substantial change of circumstances that warranted concern about her best interests, and it did not justify a change in the judgment that incorporated the 1998 agreement.

LAND USE
CRONHEIM v. CONGREGATION ZVI LAZADEEK
Appellate Division, A-297-03T5, February 8, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17597

Dismissal of the plaintiff’s action in lieu of prerogative writs alleging that the defendant Planning Board had acted arbitrarily in granting variances and site plan approval to the defendant synagogue affirmed; the synagogue sought to replace an existing building with a new, larger building that would be used for similar purposes; the Board’s findings were supported by the record, and it applied the correct legal standards when it approved the use and bulk variances and the site plan; there was no merit to the plaintiff’s assertion that the Board had authorized a new “house of worship” and had expanded a nonconforming use on the lot that held the synagogue without notice to the public that such an action was under consideration; contrary to the plaintiff’s assertion, he was not deprived of the opportunity to be heard on the drainage issue, and the Board did not ignore the provisions of the zoning ordinance governing “accessory buildings” and “houses of worship.”

PUBLIC EMPLOYEES
IN RE SWANWICK
Appellate Division, A-1103-03T3, February 8, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17598

Final determination of the Merit System Board affirming the denial of the petitioner’s request for a reclassification of title from Senior Building Maintenance Worker to Assistant Supervisor, Building Service affirmed; the Board did not err by concluding that the nature of the petitioner’s duties was commensurate with his current title and that he did not supervise a group of employees, which was a required duty for reclassification; although the petitioner met daily with the cleaning company supervisor, he did not have any supervisory authority over the contract janitorial personnel, and some of his tasks were subject to review and signature by his immediate supervisor.

DRUNK DRIVING
STATE v. ANTIGUA
Appellate Division, A-3303-03T1, February 8, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17596

Conviction of driving while intoxicated and denial of the defendant’s motion to suppress the results of a Breathalyzer test affirmed; after drinking, the defendant and his friend were driving their vehicles at 2 a.m.; when the friend sped past the defendant, the police stopped the friend; the defendant stopped in the roadway to call out to his friend, which held up traffic; the defendant was charged with obstructing traffic, and he registered a reading “well beyond the legal limit” on a Breathalyzer test; the arresting officer testified that the defendant came to a complete stop, that three vehicles were forced to stop behind him, and that the officer had asked the defendant to move on; the record supported the conclusion that the defendant had held up traffic, and the denial of the suppression motion was proper because the Breathalyzer test was the result of a lawful stop.


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