NEW JERSEY LAWYER

DAILY BRIEFING      04/12/2005


News Briefs

INDOOR AIR QUALITY POISED AS NEW LIABILITY BATTLEFIELD
Air quality problems caused by groundwater contamination may be an emerging litigation area. The state Department of Environmental Protection has ordered air quality tests of some homes in Fair Lawn and the federal Environmental Protection Agency plans to test the air in an Edgewater day care center amid speculation that groundwater contamination caused by local businesses also has contaminated the building’s air. The agencies cited a process called “vapor intrusion,” in which chemicals in groundwater evaporate and rise through cracks in building foundations. “Indoor air quality is going to be huge over the next year or two,” predicted Robert Speigel, executive director of the Edison Wetlands Association, a grassroots environmentalist group. “We foresee this as a train wreck that is unavoidable.” 4-11-05

TORAH ACADEMY GETS TO COMPETE IN NATIONAL MOCK TRIAL TOURNEY
Teaneck’s Torah Academy will be able to participate in the National High School Mock Trial Championship in Charlotte, N.C., in May now that the competition sponsor has reached a rescheduling agreement with the New Jersey State Bar Foundation. Torah Academy, winner of the state mock trial championship sponsored by the State Bar Foundation, would have been unable to participate because the national event’s final day falls on Saturday, the Jewish sabbath. Instead, the North Carolina Academy of Trial Lawyers agreed to let the school begin competing Thursday and finish before sundown Friday. “We certainly appreciate the support from the North Carolina Academy of Trial Lawyers,” said Angela Scheck, executive director of the foundation here, “and the national organization for making the accommodation.” The controversy received widespread publicity, even in Israel. 4-11-05

COMPANIES RUNNING LATE IN SARBANES-OXLEY COMPLIANCE
Lawyers shouldn’t feel alone if their corporation or corporate clients are late meeting reporting deadlines of the Sarbanes-Oxley accounting reform law. So far this year, 1,769 companies have formally asked the Securities and Exchange Commission for reporting extensions; there were 2,064 such requests during all of 2004, said SEC spokesman John Heine. Deadline problems are being caused by the relative newness of the 2002 law and the novelty of some of its requirements that kick in this year, such as the first-ever mandate for detailed reports of internal financial controls. Late filing “is not the exception anymore,” noted Jonathan Schiff, a professor of accounting at Fairleigh Dickinson University in Teaneck. 4-11-05

BOONTON TECH COMPANY DENIES MICROSOFT STING ALLEGATION
The owner of a Boonton computer services business is denying Microsoft Corp.’s claims that it has been distributing counterfeit software. “I can show valid receipts on all the software we have sold,” said Sherman Leifer of M&S Computer Products, one of eight technology services companies nationwide that Microsoft sued in federal courts alleging its sting operation last year revealed the businesses copied original versions of Microsoft software and distributed them with “certificate of authenticity” labels in violation of federal anti-counterfeiting legislation enacted last year. Microsoft said thousands of such incidents occur each year. “We’re just a small computer repair business. They may have us mixed up with some company that sells thousands of computers,” Leifer said. 4-11-05

SHIELD FOR FDA-APPROVED DRUGS BEING FOUGHT IN MICHIGAN
Michigan lawmakers plan to announce legislation that would repeal the only state law shielding drug makers from liability suits after their product is approved by the Food and Drug Administration. Michigan House of Representatives Democratic leader Diane Byrum, a co-sponsor of the repeal package, says that state’s 1996 shield law gives no legal recourse to state residents harmed by FDA-approved drugs. The bill likely will face stiff opposition from Republicans who say repeal would invite frivolous lawsuits. 4-11-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, APRIL 11, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON

GRAND JURY
IN RE GRAND JURY APPEARANCE REQUEST BY LOIGMAN
New Jersey Supreme Court, A-51, April 11, 2005. (24 pages). Facts-on-Call Order No. 92406

A private person does not have the right to present an allegation or evidence of a crime to a grand jury.

THE SUPREME COURT has announced that it will release an opinion in DELACRUZ v. BOROUGH OF HILLSDALE, A-72/73, on April 12, 2005. The issue on appeal in Delacruz addresses whether the pain and suffering threshold under the Tort Claims Act applies to claims of false arrest and false imprisonment.



APPROVED FOR PUBLICATION
INSURANCE
McCLELLAN v. FEIT
Appellate Division, A-3501-03T1, approved for publication April 11, 2005. (21 pages). Facts-on-Call Order No. 92407

A 1986 homeowner’s policy covered negligent misrepresentation, and the insured homeowners were due a defense on a claim that they had negligently misrepresented the absence of an underground oil storage tank on residential property that they had sold. However, the matter was remanded for a determination as to whether the insureds had received proper notice of the 1994 policy change that specifically excluded negligent misrepresentation.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
LEBEL v. DWYER, DWYER & DWYER
Appellate Division, A-2677-02T2, April 11, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17814

Summary judgment on statute of limitations grounds for the defendant law firms and the defendant attorneys in a legal malpractice action affirmed substantially for the reasons set forth by the trial court; the plaintiff developers hired the various law firms and attorneys in connection with the 1985 purchase of land in the Township of Mahwah and the resulting lawsuit against the Township and its officials; the plaintiffs sued the Township and its officials in federal court in November 1992 for violating the plaintiffs’ constitutional rights by intentionally delaying the development project, but that suit was dismissed on limitations grounds in August 1995; the plaintiffs filed their malpractice action in March 2001; the trial court properly held that the malpractice action was barred by the statute of limitations because the plaintiffs knew or should have known of the basis for their claims against the defendants more than six years before they filed their complaint.

LAND USE
MORAN v. WEIKEL
Appellate Division, A-2516-03T5, April 11, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 17815

Law Division orders upholding the denial of a zoning application and denying the plaintiff applicant’s motion for reconsideration and for entry of default judgments against the defendant Township and the defendant zoning official affirmed; the plaintiff sought to build a tower for personal use to communicate with his construction company in Pennsylvania and for use by wireless carriers if leases became available; the evidence supported the finding by the defendant Board of Adjustment and the Law Division that the plaintiff did not have a proprietary interest in the land and that, even if he did, the use could not be considered an accessory use; there was no reasonable reliance or valid claim of estoppel or laches based on the zoning officer’s erroneous issuance of a building permit; the Law Division did not abuse its discretion by denying the plaintiff’s motion for reconsideration or for entry of default judgments.

CIVIL RIGHTS
JENNINGS v. TOWNSHIP OF IRVINGTON
Appellate Division, A-4357-03T2, April 11, 2005, not approved for publication. (18 pages). Facts-on-Call Order No. 17816

Summary judgment for the defendant Township, the defendant Police Department, the defendant Chief of Police, and the defendant police officers affirmed in a §1983 action arising from the plaintiff’s arrest; even when viewed in a light most favorable to the plaintiff, the plaintiff failed to present prima facie evidence of any violation of his Fourth Amendment rights either during his arrest or after his arrest when he was in the police car; although the defendants admitted that force was used during the plaintiff’s arrest, no jury could find that the force that was used was unreasonable under the circumstances; the plaintiff admitted that, at the time of the arrest, he was “inebriated, violent, hostile and otherwise uncooperative,” and a degree of force was needed to handcuff him and to place him in the police car; the plaintiff admitted that his fall resulted from “his own poor sense of balance,” and there was no evidence that the force had been applied at the time that he fell; also, even if a violation was established, the plaintiff failed to show that it would be clear to a reasonable police officer that his conduct was unlawful under these circumstances.

HUSBAND AND WIFE
LAYMAN v. LAYMAN
Appellate Division, A-4384-03T2, April 11, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17813

Post-divorce-judgment order denying the defendant ex-wife’s motion for attorney’s fees reversed and remanded, but order denying the plaintiff ex-husband’s cross-motion for attorney’s fees affirmed; the parties’ September 2002 judgment of divorce included a property settlement and support agreement that resolved all issues except for attorney’s fees; in December 2003, the defendant moved for payment of $29,545 in attorney’s fees, and the plaintiff cross-moved for attorney’s fees incurred in opposing the defendant’s motion; the Appellate Division did not condone the length of time taken to file the fee application or the submission of a deficient application, but the trial court abused its discretion by denying the defendant’s motion because there was neither a violation of Best Practices nor any conditions that warranted applying the doctrine of laches and because any deficiencies in the defendant’s application were “readily curable” due to the need for a hearing; the trial court did not abuse its discretion by denying the plaintiff’s cross-motion.

APPELLATE PROCEDURE
IN RE CARVAJAL
Appellate Division, A-7114-03T5, April 8, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17812

Appeal from a final decision of the Division of Medical Assistance and Health Services denying the appellant a fair hearing dismissed; the appellant applied for FamilyCare benefits, and she was instructed that additional information was required; when she did not provide the information, her claim was denied; the denial notice described her right to a fair hearing if it was requested within 20 days; the appellant requested a fair hearing nearly 15 months after her claim was denied, and her request was denied as untimely; the letter denying her request, which was dated April 28, 2004, stated that she had a right to appeal to the Appellate Division within 45 days; the appellant filed her appeal on August 23, 2004; the appellant’s lateness in filing her appeal deprived the Appellate Division of jurisdiction; thus, her appeal was dismissed as untimely; on the merits, the Division did not abuse its discretion by denying a fair hearing on an application that was made 15 months after the date of the original denial.


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