NEW JERSEY LAWYER

DAILY BRIEFING      03/07/2005


News Briefs

$110 MILLION JUDGMENT UPHELD IN LIQUOR LIABILITY CASE
Bergen County Judge Richard J. Donohue has upheld a jury verdict against Philadelphia-based Aramark, the nation’s third-largest food service provider at sports events, for serving alcohol to a visibly drunk spectator, Daniel Lanzaro, at a New York Giants game. In January, the jury awarded nearly $110 million, including interest, to now 7-year-old Antonia Verni, left a quadriplegic, and her mother, Fazila, seriously injured, when Lanzaro plowed his vehicle into their family car after leaving the game. Donohue denied Aramark’s post-trial motions seeking to have the judgment vacated or reduced. Roseland attorney David A. Mazie, who represented the Verni family, had called the jury verdict “a message to the industry” that will “hopefully change the way beer is sold at stadiums.” Aramark intends to appeal. 3-4-05

REVENUE UPSWING PREDICTED — WITH CAVEATS
Law firms can look forward to revenue growth rates averaging 12 percent this year, compared to a 9 percent-plus upswing in 2004, according to Somerset-based Hildebrandt International. But firms should be prepared to deal with clients who resist automatic rate increases and push for better deals, as well as partners scrambling to justify their own income, predicts the legal practice management firm. For a complete story, see the March 7 New Jersey Lawyer. 3-4-05

JUDICIAL NOMINATIONS
Acting Gov. Richard J. Codey has sent the names of five lawyers to the Senate for confirmation as Superior Court judges. The nominees are: Fairfield attorney Ned M. Rosenberg, Assistant Deputy Public Defender Torkwase Y. Sekou, Phillipsburg attorney James L. Pfeiffer, Deputy Public Defender Verna G. Leath and Verona attorney Walter Koprowski Jr. 3-4-05

FRAUD PROSECUTIONS, VICTIM RESTITUTION UP IN 2004
Some 134 insurance fraud defendants were sentenced to jail last year in New Jersey, nearly three times as many as 2003, and the amount of restitution more than doubled, from $8 million in 2003 to $16.2 million last year, according the 2004 annual report of the Office of the Insurance Fraud Prosecutor. That office, named the No. 1 insurance fraud prosecuting office in the country in 2003 by Washington, D.C.-based Coalition Against Insurance Fraud, “maintained that success in 2004,” said Attorney General Peter C. Harvey. Created in 1998 to deal solely with fraud schemes that escalate the cost of auto and other insurance policies, and reorganized by Harvey in 2002 to create specialized insurance fraud sections that mirror the industry, the office had a 100 percent conviction rate last year. These included Linda Clements-Wright, a claims specialist who stole nearly $600,000 in bogus settlement monies, and Eliezer Martinez, a Medicaid provider who submitted nearly $140,000 in fictitious counseling claims. Last year also saw the state’s first successful prosecution of a staged accident ring, resulting in a 29-year sentence for Anhuar Bandy, kingpin of the scheme. 3-4-05

FEDERAL JUDICIARY SEEKS EMERGENCY FUNDING
The U.S. Supreme Court’s recent rulings on sentencing and newly enacted class action legislation are expected to cost federal courts more than $100 million, prompting Leonidas Ralph Mecham, director of the Administrative Office of the U.S. Courts, to seek an emergency appropriation. “The judiciary has neither the financial nor personnel resources to cover these new workload requirements,” said Mecham in a letter to President Bush who forwarded the request to Congress. The Supreme Court’s rulings in U.S. v. Booker and U.S. v. Fanfan, which made federal sentencing guidelines advisory, are expected to increase the judiciary’s workload with pending and new cases as inmates petition district and appellate courts to reconsider their sentences. And the Congressional Budget Office estimates the newly enacted class-action legislation will move a projected 300 complex lawsuits from state to federal courts during the coming months. Projected cost increases include $40.5 million for district and appellate courts, $60 million for defense counsel services, $400,000 for Federal Judicial Center training workshops for judges, probation officers, federal defenders and other court personnel, and $900,000 for the U.S. Sentencing Commission. 3-4-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, MARCH 4, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, MARCH 4, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, MARCH 7, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON FRIDAY, MARCH 4, 2005.

NOT APPROVED FOR PUBLICATION
HUSBAND AND WIFE
NESIC v. NESIC
Appellate Division, A-5846-03T2, March 4, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 17698

Denial of the defendant ex-wife’s post-divorce motion to use $50,000 of the proceeds of the sale of the parties’ investment property to create a trust fund to pay for the future educational expenses of the parties’ 12-year-old daughter affirmed; the final amended divorce judgment required the parties to share the daughter’s college expenses “to the extent that they are financially able,” and the judgment required the daughter to pursue scholarships and grants; the plaintiff ex-husband was 60 years old and earned about $30,000 per year; the defendant’s affidavit supporting her motion did not address the Newburgh v. Arrigo factors, and she submitted only a certification speculating that the plaintiff would try to avoid his parental obligations; the trial court’s findings were supported by the record, and its conclusions were “legally sound.”

HUSBAND AND WIFE
CAPRIOLO v. CAPRIOLO
Appellate Division, A-4467-03T5, March 4, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 17699

Post-divorce-judgment order denying the defendant ex-husband’s motion to modify his support obligations toward the plaintiff ex-wife and their two children reversed and remanded for a modification of the defendant’s obligations; the defendant earned about $98,000 per year as a telecommunications manager when the parties were divorced in 2001, but his employment was terminated later that year; when the defendant was unable to locate comparable employment, he earned a bachelor’s degree in computer science and a certification in that field, and he accepted seasonal employment followed by a full-time job that paid $24,000 per year before obtaining a $45,000 per year position in 2003; the undisputed facts did not support the trial court’s conclusion that the defendant was voluntarily underemployed.

NEGLIGENCE
QUINTON v. FLORES
Appellate Division, A-5782-03T1, March 4, 2005, not approved for publication. (18 pages). Facts-on-Call Order No. 17692

Denial of the plaintiff driver’s motion for a new trial after a jury verdict of no cause of action in an automobile negligence case reversed and remanded for a new trial; the plaintiff’s van collided with a tractor-trailer driven by the defendant, and the parties disputed the facts of the accident; the trial court granted defense counsel’s motion in limine to use in her opening statement an enlargement of the investigating police officer’s report, which concluded that the plaintiff was “at fault,” but the word “fault” was redacted from the enlargement; the officer later testified that the plaintiff was at fault and read his report’s conclusion to the jury; the officer “clearly” testified as a lay witness, and the trial court erred (1) by admitting his lay opinion, which was based mainly on the hearsay statements of lay witnesses from his report, and (2) by permitting the use of the enlargement; reversal was required because the admission of the officer’s testimony was “clearly capable of producing an unjust result.”

PREMISES LIABILITY
LOPEZ v. AYENDE
Appellate Division, A-4442-03T5, March 4, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17693

Summary judgment for the defendant corporation in a personal injury action affirmed; the defendant leased its car wash to its current operator for 30 years to conduct any “lawful use or uses,” including a car wash or similar businesses; the plaintiff employee was in the driveway of the car wash drying a car when a collision occurred in the street, and one of the vehicles entered the driveway and injured him; the precedent cited by the plaintiff — Monaco v. Hartz Mountain, Wirth v. Peters, Warrington v. Bird, and Hopkins v. Fox & Lazo Realtors — was inapposite; even if the method of operation was a defect in the premises, the defendant landlord was not responsible, and the tenant’s decision to use methods previously used by the landlord did not create liability in the landlord.

LAND USE
BELL v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF RAMSEY
Appellate Division, A-1463-03T2, March 4, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17694

Law Division order upholding the denial of the plaintiffs’ application for a conditional use variance for the construction of a car wash in “a busy commercial area” at an intersection with Route 17 in Ramsey affirmed; the zoning ordinance required an average lot depth of 150 feet, which was intended to ensure that vehicles waiting in line would not spill out onto the adjacent roadway; the Law Division correctly held that the plaintiffs had failed to satisfy both the positive criteria and the negative criteria; the record supported the conclusions that the site was “particularly unfavorable” for a car wash, that the plaintiffs’ assumptions about the capacity of the car wash were “unduly optimistic,” and that “even one car extending into the roadway would pose an unacceptable risk.”

PUBLIC EMPLOYEES
NASH v. CITY OF CAMDEN
Appellate Division, A-6033-03T5, March 4, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17695

Summary judgment for the defendant City in a breach of contract action by the plaintiff deputy fire chief affirmed; the plaintiff claimed that he was underpaid because he failed to receive the salary increases given to union members pursuant to their collective bargaining agreement; the CBA did not cover the position of deputy fire chief, and the plaintiff was not a member of the union; the plaintiff based his claim on an ordinance that provided that the fire chief and deputy fire chief, among others, “shall be in ranges and shall retain all benefits as provided in the Superior Officer Contract with the respect[ive] divisions, except they shall not be entitled to overtime payments”; the trial court properly concluded that the phrase “shall retain all benefits” referred to benefits, such as medical coverage, that usually are complementary to salary.

PUBLIC EMPLOYEES
VETRENO v. DIVISION OF YOUTH AND FAMILY SERVICES
Appellate Division, A-3537-02T5, March 4, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17696

Final decision of the Merit System Board approving and implementing a title re-evaluation and salary range adjustment affirmed; the plaintiffs, who are employees of the Division of Youth and Family Services and who are or were working as Family Service Specialists I, claimed that promissory estoppel barred the Board’s decision to adjust the grade and salary range for Family Service Specialists I and Supervising Family Service Specialists II; the plaintiffs’ claim of promissory estoppel was without merit because they could not establish (1) “a clear and definite promise” where none of the plaintiffs’ documents included a promise to continue the previous program for a certain amount of time or (2) “reasonable reliance” because State employees cannot “reasonably rely” on a promise to continue a title or transfer program “for all time” where the Commissioner of Personnel has the authority to review and reclassify positions and where a person accepting public employment is presumed to know that.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF A.X.L.
Appellate Division, A-3267-02T2, March 4, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17697

Order continuing the appellant’s involuntary commitment under the Sexually Violent Predator Act affirmed; the appellant’s predicate offense occurred when he sexually assaulted a woman who picked him up hitchhiking, and he pleaded guilty to second-degree sexual assault; the record justified the appellant’s continued commitment; the trial court was clearly convinced (1) that the appellant continued to be a sexually violent predator who suffered from “abnormal mental conditions and personality disorders that affect his cognitive, emotional and volitional capacity in such a way as to predispose him to commit sexually violent offenses,” (2) that he had “severe difficulty controlling his behavior,” and (3) that it was “highly likely” that he would “recidivate in a sexual manner” and commit additional sexually violent offenses if his care and custody was not continued.


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