NEW JERSEY LAWYER

DAILY BRIEFING      03/18/2005


News Briefs

MONTCLAIR WEIGHING APPEAL OF GAY COUPLE TAX RULING
Montclair municipal attorney Alan G. Trembulak will meet Tuesday with the township council there to decide whether to seek an appeal of Tax Court Judge Vito L. Bianco’s narrowly framed ruling granting a gay couple the same property tax exemption for 100 percent disabled veterans as married couples. Bianco’s decision, which is being hailed by gay rights activists, including Lamda Legal’s David Buckel, cited the same-sex couple’s registration under the state’s new Domestic Partnership Act in granting the exemption, even though that law does not specifically cover such tax cuts for wartime disabled veterans. A bill, A-3629, pending in Trenton, would specifically do just that. The judge said he believes the partnership statute was meant to apply to such situations, giving gay couples the same tax-related benefits as married couples. The decision in Hennefeld v. Township of Montclair would not have been needed, said Buckel, if gay couples were allowed to marry here — a separate issue now before the Appellate Division with Buckel serving as the lead attorney for the plaintiffs, seven gay couples. In the tax case, the couple actually was married two years ago in Canada, but Bianco said that status is not recognized here. He warned not to read more into his ruling than its limited scope. (A full text of Hennefeld v. Township of Montclair, Facts-on-Call Order No. 92368, can be ordered from NJL Online or by calling 800-670-3370.) 3-17-05

GUESS WHO’S CALLING?
U.S. Attorney Christopher J. Christie, who once came under criticism for essentially saying Monmouth County was rampant with corruption, now seems to be on a relentless course to prove who’s right. Christie, whose probers already have lassoed more than one-dozen pols and businesspeople in the Central Jersey county, now appears to be taking his corruption-clearing campaign deeper into county government operations, with the federal grand jury subpoenaing all records from the county finance department involving the use of nearly $300 million in federal grants to the agency since 1999. Given his track record so far, no one is suggesting Christie simply may be fishing. 3-17-05

AG CITES SIMPLE MATH IN PLAN TO SUE FEDS OVER POLLUTION
Attorney General Peter Harvey is laying out some simple math in justifying plans to challenge the federal government’s new mercury emissions control standards: The new rules would allow triple the amount of emissions than the feds have been allowing, while New Jersey’s standards adopted last year reduce emissions from coal-powered plants by 90 percent. The Environmental Protection Agency’s new standards, which allow coal-fired plants to trade credits for emission controls, would offset New Jersey’s higher standards when emissions are blown this way from other states, adhering to the fed’s weaker guidelines, Harvey said. He is joining the state Department of Environmental Protection in a suit to be filed soon to block the federal rules. 3-17-05

REED SMITH’S GERMAN EXPANSION COULD BOOST PHARMACEUTICAL WORK
Philadelphia-based Reed Smith, which has offices in Newark and Princeton, opened a seven-lawyer office in Munich. It’s headed by partners Stefan Kugler and Michael Fischer, who joined from Luther Menhold, a German law firm affiliated with Ernst & Young in New York. A Reed Smith spokesman notes Germany’s large pharmaceutical industry should help the Newark and Princeton offices’ work with such New Jersey corporations. 3-17-05

FEDS LAUNCH NEW CULLEN INVESTIGATION
In an action that could ripple to the Middlesex County Superior Court, the U.S. Attorney’s Office plans to investigate whether hospitals in New Jersey and Pennsylvania broke federal laws in failing to take action against Charles Cullen, the critical-care nurse who pleaded guilty to killing 24 patients and attempting to kill another five under his care between 1988 and 2003. In a new approach to mass torts, the New Jersey Supreme Court last October consolidated civil actions arising from Cullen’s crimes under the management of Middlesex County Judge Bryan D. Garruto. 3-17-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, MARCH 17, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, MARCH 17, 2005:

EVIDENCE
OSTROWSKI v. CAPE TRANSIT CORP.
New Jersey Supreme Court, A-66, March 17, 2005. (5 pages). Facts-on-Call Order No. 92363

The New Jersey Supreme Court affirmed substantially for the reasons expressed in the Appellate Division’s opinion reported at 371 N.J. Super. 499 (2004). The defendants’ presentation of expert medical testimony that the plaintiff was faking his symptoms of a serious brain injury constituted an attack on his character for truthfulness, which entitled him to rebut with evidence that he is a truthful person.

TAXATION
TOWNSHIP OF MONROE v. GASKO
New Jersey Supreme Court, A-30, March 17, 2005. (20 pages). Facts-on-Call Order No. 92364

The temporary greenhouses in this case, in which the growing operation fully uses the greenhouses and no adjustments were made to address marketing or retail concerns, qualify for farmland assessment under N.J.S.A. 54:4-23.12(a), even though the public is allowed to enter to choose and remove plants for the purpose of purchasing them elsewhere.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, MARCH 18, 2005.



APPROVED FOR PUBLICATION
CRIMINAL TRIALS
STATE v. MAHONEY
Appellate Division, A-3364-02T2, approved for publication March 17, 2005. (45 pages). Facts-on-Call Order No. 92365

In a criminal action arising from the defendant attorney’s delay in disbursing to his clients proceeds from the settlement of a wrongful death case and from his endorsement and deposit of a third-party settlement check without his clients’ authorization, the trial court (1) improperly excluded substantial portions of proffered testimony by the defendant’s character witnesses, (2) improperly submitted to the jury the full text of Rule 1:21-6, but (3) properly denied the defendant’s application for the Pretrial Intervention Program.

REAL PROPERTY
KHALIL v. MOTWANI
Appellate Division, A-4680-02T3, approved for publication March 17, 2005. (16 pages). Facts-on-Call Order No. 92366

Tenants of a benefited property are entitled to use an easement, even though the instrument creating the easement did not expressly mention tenants. As a matter of first impression, tenants have the right to sue to enforce their rights to use an easement. Also, the property owners burdened by the easement in this case were not obligated to remove snow from the easement and were obligated only to avoid doing anything in the enjoyment of their property that would unreasonably obstruct or hinder the beneficiaries’ use of the easement.

LANDLORD AND TENANT
NEW YORK EAST COAST MANAGEMENT v. GONZALEZ
Law Division, Hudson County, LT 15617-04, approved for publication March 10, 2005. (5 pages). Facts-on-Call Order No. 92367

Neither a notice to cease nor a notice to quit must be in Spanish in order to evict a tenant on the grounds of habitually late payments of rent, contrary to the dictum in 5000 Park Associates v. Collado.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
VALENTINO v. JEIGER
Appellate Division, A-4404-03T2, March 17, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17740

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA and denial of the plaintiff’s motion for reconsideration affirmed; the defendant’s motion for summary judgment was not premature because, by the time the motion was filed, the discovery end date, which had been extended by the plaintiff, had passed and because the matter had been arbitrated and an initial trial date had been set; furthermore, the plaintiff’s deviated septum was not a “displaced fracture” because a fracture, for the purposes of the verbal threshold, must involve a broken bone and because a deviated septum involves only cartilage; furthermore, the documents and records provided by the plaintiff’s doctor were not sufficient to meet the Polk requirement.

VERBAL THRESHOLD
ZAMBETTI v. CARDI
Appellate Division, A-4443-03, March 17, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17739

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the plaintiff failed to demonstrate that her herniated disc at L5-S1 had an objective capacity to have a serious impact on her life where her own expert stated, on review of her lumbar MRI films, that there were “no findings in the examination which would be associated with myelopathy or radiculopathy since no compression of the spinal cord or nerve roots is present on the examination”; even if this “evidential deficiency” were overlooked, the plaintiff’s injuries had an “insufficient effect” on her life to overcome the verbal threshold (1) where she remained fully employed with no change in her responsibilities, (2) where, despite her complaint about being unable to sit for extended periods, she rode as a passenger with her supervisor in a territory that extended to Harrisburg, Philadelphia, Delaware, South Jersey, and occasionally the Jersey Shore, (3) where she was the primary caregiver for her grandchild until February 2004, and (4) where she gave up no recreational activities that would be considered an essential part of her life.

INSURANCE
SALEH v. ACADEMY EXPRESS INC.
Appellate Division, A-2037-03T2, March 17, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17742

Summary judgment holding the defendant bus company responsible for paying medical expense benefits to the plaintiff passengers, who were injured in a collision with a truck, and denial of one plaintiff’s motion for attorney’s fees affirmed; the bus was owned by New Jersey Transit but was leased to the defendant, which operated it on New Jersey Transit’s behalf; contrary to the defendant’s argument on appeal, the defendant was required to maintain medical expense coverage by N.J.S.A. 17:28-1.6(a) and was not exempted by N.J.S.A. 17:28-1.5(g), which excludes buses “owned and operated by” New Jersey Transit from the definition of “motor bus” in 17:28-1.6(a); as to attorney’s fees, Rule 4:42-9(a)(6) did not apply in this case because the plaintiff was not suing upon “a liability or indemnity policy of insurance.”

CIVIL PROCEDURE
WEINBERG v. DiMARZO
Appellate Division, A-5009-03T5, March 17, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17741

Denial of the plaintiff’s motion for a new trial after a jury verdict in an automobile personal injury action affirmed; the jury awarded the plaintiff $1,000 in gross damages but found that she had been 40 percent negligent; seven doctors had testified for the plaintiff, and she claimed that her physical activities had been “greatly limited,” but the defendant’s doctors testified that the plaintiff had pre-existing pain, that some of her complaints were “physiologically impossible,” and that she was a malingerer; given the “dramatically opposed medical testimony,” it appeared that the jury decided the case on the basis of credibility, and the jury verdict was not “a clear and convincing miscarriage of justice.”


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Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


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