NEW JERSEY LAWYER

DAILY BRIEFING      04/20/2005


News Briefs

SEX ASSAULT VICTIMS GETTING COMPASSION FROM INVESTIGATORS
Sex assault victims are getting kinder and gentler treatment from police and other investigators, under a new state policy. “The goal is not to ‘re-victimize’ the victim,” said Attorney General Peter C. Harvey of the policy to make rape investigations more understanding of the personal needs and concerns of victims. It includes giving county prosecutor’s offices access to teams specially trained in handling such victims. 4-19-05

PHILLY AREA FIRMS REPRESENTING PENSION FUNDS AGAINST MERCK
Cohen, Milstein, Hausfield & Toll in Philadelphia and Schiffrin & Barroway in Radnor, Pa., are among the four firms selected to lead litigation by pension funds suing Whitehouse Station-based Merck & Co. for alleged investment losses related to the company’s Vioxx drug. U.S. District Judge Stanley R. Chesler in Trenton, who is managing a consolidation of these cases, also named Keller Rohrback of Seattle to join Schatz & Nobel of Hartford, Conn., whose partner Robert Izard is leading the team. They’re representing pension funds that owned Merck stock prior to a steep decline in value upon the release of studies linking Vioxx to increased risk of heart attacks and strokes. 4-19-05

FORMER TANJ PRESIDENT AND ASSEMBLYMAN DIES
William O. Barnes Jr., a founding member of the Trial Attorneys of New Jersey and a former state assemblyman, died April 18. Before retiring in 1989, he practiced with his sons at the civil litigation firm he began in 1955. His relationship with TANJ began in 1967 when he helped launch the group and included a stint as president in 1971-72 — a post two of his sons have since held. Barnes was state chairman of the Young Republicans and at age 29 was elected an assemblyman. 4-19-05

ANNUAL ATLA-NJ MEETING ON TAP THIS WEEK
The president’s speech at the American Trial Lawyers Association-New Jersey Boardwalk Seminar in Atlantic City on Friday will be delivered by President-elect E. Drew Britcher instead of President Richard H. Wildstein, who’s been in Delray Beach, Fla., recovering from a heart attack in January. Britcher, who has filled in as president since the start of the year, will welcome members to the conference that begins Thursday. Wildstein’s condition has forced him to retire from the practice of law, said Paul O’Rourke, his partner at Goldstein Ballen O’Rourke & Wildstein in Passaic. 4-19-05

HOLOCAUST VICTIMS’ SUIT AGAINST VATICAN BANK APPROVED
Lawyers for Holocaust survivors got the green light to sue the Vatican Bank for profiting from Nazi occupation of Eastern Europe. In Alperin v. Vatican Bank, the 9th U.S. Circuit Court of Appeals authorized the class action previously dismissed by U.S. District Judge Maxine Chesney in San Francisco. Hundreds of thousands of Russians, Ukrainians and Belarusian Holocaust victims are potential members of the class, which alleges the Vatican Bank laundered money for leaders of Nazi-operated death camps. 4-19-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, APRIL 19, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY. APRIL 19, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, APRIL 20, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, APRIL 19, 2005.

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, APRIL 19, 2005.

THE FOLLOWING OPINIONS NOT APPROVED FOR PUBLICATION HAVE BEEN RELEASED:


CONTRACTS
BROOKS v. CROWLEY LINER SERVICES, INC.
Appellate Division, A-5554-03T3, April 18, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17850

Summary judgment for the defendant marine terminal operator in an action alleging tortious interference with contractual relations affirmed; the plaintiff contracted with a trucking company to drive a tractor; the plaintiff thought that the $50 fee paid by the defendant to the trucking company to haul clean tanker trailers from a cleaning facility to the terminal was inadequate; the plaintiff unsuccessfully lobbied the trucking company and its successor for an increase in the fee, and he later informed the defendant that he would no longer haul clean tanker trailers to the terminal; the defendant told the plaintiff that he was “off of this pier,” and the successor terminated the plaintiff’s contract; the trial court properly found that the plaintiff had not presented sufficient evidence that the defendant had interfered with the plaintiff’s contract with the successor; moreover, the plaintiff effectively terminated his own contract with the successor by refusing to haul the clean tankers to the terminal.

LAND USE
POWERS v. TOWN OF MORRISTOWN ZONING BOARD OF ADJUSTMENT
Appellate Division, A-3949-02T5, April 18, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 17852

Order upholding the defendant Zoning Board’s grant of dimensional variances and site plan approval to the defendant social club for its three-acre property that was located in a residential zone affirmed; the plaintiff neighbors contended that the Zoning Board lacked subject-matter jurisdiction to approve the site plan because the site plan contemplated the use of a lane that ran along the property, even though the club neither owned the lane nor demonstrated that it had the right to use the lane based on its chain of title; the plaintiff neighbors had a nonexclusive easement to use the lane, the club had used the lane since at least 1968, and there was no evidence that negated the club’s right to continue to use the lane; the trial court properly found that the Zoning Board did have jurisdiction where the Zoning Board did not purport to adjudicate or declare the rights of the parties to use the lane or to exclude others from using the lane.

REAL PROPERTY
KERR v. RILEY
Appellate Division, A-2924-03T5, April 15, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17846

Chancery Division decision that the plaintiffs owed $82,306.69 as of December 12, 2000 on a 1981 mortgage in a foreclosure action affirmed; the plaintiffs had borrowed money from the decedent beginning in 1971, and the 1981 mortgage sought to consolidate the plaintiffs’ outstanding loans; the 1981 mortgage was for $45,376.08 with a 16 percent interest rate and $100 monthly payments; the plaintiffs later entered into more loans with the decedent, and they claimed that loan payments of $41,027.07 had not been recorded or credited in the decedent’s ledgers; the Chancery Division determined (1) that the 1981 mortgage was valid in spite of alleged deficiencies and signatory problems, (2) that the 1981 mortgage was not unconscionable, and (3) that the amount due on the 1981 mortgage as of December 12, 2000 was $82,306.69; the Chancery Division’s findings and conclusions were supported by the record.

PARENT AND CHILD
ANDERSEN v. ANDERSEN
Appellate Division, A-7094-03T5, April 18, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17848

Post-divorce-judgment order directing the enrollment of the parties’ only child in first grade in the Ramsey school system affirmed; the parties’ property settlement agreement provided that the child would be enrolled in September 2004 in the public school system “that offers the highest quality of education in close proximity to the parties’ current residences”; the plaintiff father sought to enroll the child in the school system in Allendale, and the parties lived two miles apart in Allendale and Ramsey; the trial court’s decision was based on the totality of the circumstances, including the parties’ stability and history; there was no reason to disturb the trial court’s findings or conclusions where the parties, the expert chosen by the parties, and the trial court could not discern “any significant difference in educational quality” between the two school systems; moreover, there was no need for a plenary hearing on the issue.

CIVIL PROCEDURE
FRIEDL-COHAN v. J. FLETCHER CREAMER & SONS
Appellate Division, A-6617-03T5, April 18, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17849

Denial of the plaintiff’s motion to reinstate her complaint following an administrative dismissal reversed and remanded; the plaintiff sued the defendant on November 20, 2002 for personal injuries that she sustained in an automobile accident on November 22, 2000; an affidavit of service that was filed with the Superior Court on January 22, 2003 indicated that a legal secretary, who stated that she was authorized to accept service on the defendant’s behalf, was served with the summons and complaint on December 17, 2002; the trial court denied the plaintiff’s reinstatement motion because it was “not satisfied” that the defendant had been properly served; the trial court mistakenly exercised its discretion by deciding that service was improper where there was a facially valid proof of service and where the defendant raised no objection to service.

PUBLIC EMPLOYEES
IN RE BERNHARD
Appellate Division, A-1934-03T1, April 18, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 17851

Final decision of the Merit System Board that the respondent municipality’s removal of the appellant police officer was justified affirmed substantially for the reasons set forth in the administrative law judge’s written opinion, which the Board accepted and adopted in all respects; while investigating a complaint about the possible theft of a mail package, the appellant allegedly made inappropriate sexual comments to the victim’s neighbor; the appellant was suspended with pay, was charged with violating police department rules and regulations, and later was terminated at a disciplinary hearing; on appeal, the ALJ determined (1) that the procedural problems alleged by the appellant did not require dismissal of the charges, (2) that the neighbor was a credible witness about the appellant’s comments, even though she was not credible about her relationship with the victim, and (3) that the appellant had abused his position by subjecting the neighbor to “degrading, intimidating and offensive conduct” that was sufficiently egregious to warrant removal, despite the lack of previous disciplinary actions.


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