NEW JERSEY LAWYER

DAILY BRIEFING      04/26/2005


News Briefs

CALL IT STATE AID FOR CORRUPTION
Contending the bribes that former Mayor Matthew V. Scannapieco accepted from developers will result in overdevelopment that will require infrastructure improvements, Marlboro Township officials are seeking emergency funds from acting Gov. Richard J. Codey. Scannapieco pleaded guilty in U.S. District Court earlier this month to accepting $245,000 in cash from an unnamed developer in exchange for voting for or otherwise supporting various development projects. “We are a community now in desperate need of assistance,” Mayor Robert Kleinberg says in a letter that asks Codey’s office to reallocate an undetermined amount of tax revenue back to Marlboro. 4-25-05

CLASS STATUS GRANTED IN DEBT COLLECTION LETTER CASE: THE
U.S. District Court for Eastern New York has granted class-action status to Vega v. Credit Bureau Enterprises in which the debt collection company is accused of using misleading language in a standardized letter sent to 1.6 million people. U.S. District Judge David G. Trager noted that standardized debt collection letters in which the language allegedly violates the Fair Debt Collection Practices Act are well-suited for class-action status because the similarity of all the mailings often meets the commonality and typicality elements of the federal judiciary’s Rule 23. 4-25-05

PAROCHIAL SCHOOL TUITION NOT REASONABLE EXPENSE IN BANKRUPTCY
In interpreting the federal Religious Freedom Restoration Act, the 1st U.S.. Circuit Court of Appeals has ruled parochial school tuition payments are not a reasonable and necessary expense for Chapter 13 bankruptcy filers. In In re Watson, the court upheld a bankruptcy court ruling and further found the law does not give debtors the right to spend disposable income on tuition. The debtors, parents whose children attend Catholic school, argued that allowing tuition payments in their bankruptcy plan protects the exercise of their faith. 4-25-05

TOUGH RULES CREDITED WITH PRISON POPULATION RISE
The federal Bureau of Justice Statistics is crediting tough anti-crime policies enacted in the 1980s and 1990s with a 2.3 percent increase in the prison population nationwide for the 12-month period ending last June. Prisons and jails held about 2.1 million inmates, or one of every 138 U.S. residents, up 48,000 from a year earlier, according to the bureau’s report. Its author, Paige Harrison, noted that mandatory drug sentencing, the “three strikes” rule for repeat offenders and restrictions on early release are factors. 4-25-05

BETTER TO HAVE LOVED AND LOST, THAN NEVER TO …
OK, see if you can reach a conclusion on this legal action. Kuttivana, 29, an Indian rubber tapper born with female and male sex organs, loved his relative Laura so much that he had an operation to become a man. But, while under the knife, Laura, 25, got engaged to someone else. So, Kuttivana, who adopted the male first name, Binu, has sued her for breach of promise, seeking the 50,000 rupees ($1,150) the operation cost. Laura’s fiancé backed out of the wedding plans after hearing of Binu. 4-25-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, APRIL 25, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, APRIL 25, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, APRIL 26, 2005.


APPROVED FOR PUBLICATION
MEDICAL MALPRACTICE
STAROZYTNYK v. REICH
Appellate Division, A-4706-03T1, approved for publication April 25, 2005. (24 pages). Facts-on-Call Order No. 92432

Under Perna v. Pirozzi and Howard v. University of Medicine and Dentistry of New Jersey, a patient who consents to a spinal fusion by one surgeon under the mistaken belief that he is being assisted by a specific vascular surgeon and who has no proof of injuries resulting from the substitution of the surgeon does not have an action against the operating surgeon for battery, breach of contract, or breach of fiduciary duty owed by a physician to a patient.

INSURANCE
ARCNET ARCHITECTS, INC. v. NEW JERSEY PROPERTY-LIABILITY INSURANCE GUARANTY ASSOCIATION
Appellate Division, A-2254-03T5, approved for publication April 25, 2005. (12 pages). Facts-on-Call Order No. 92433

Attorney’s fees and other claim expenses incurred before an insurance company’s insolvency are not “covered claims” and therefore are not payable by the New Jersey Property-Liability Insurance Guaranty Association.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
REED v. HAAS
Appellate Division, A-5573-03T1, April 25, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17868

Denial of the defendant ex-husband’s request for a mistrial based on the three-month employment of the Family Part judge’s law clerk by the firm representing the plaintiff ex-wife affirmed; the law clerk worked for the judge from January 7, 2002 to August 31, 2003, and she worked for the law firm from September 15, 2003 to December 22, 2003; before and during her employment with the firm, she did not discuss any work performed as a law clerk in connection with this case and did not participate in any manner with the trial preparation, motion preparation, or any aspect of the trial; the law clerk’s only involvement in the matter was in response to a post-trial application on October 22, 2003; the defendant had no basis “other than speculation and paranoia” for his claim of conflict; the defendant was aware in October 2003 that the law clerk was an associate at the firm representing the plaintiff, but he remained silent until he filed his motion in April 2004; the defendant’s delay “significantly undermines the validity of his claim.”

NEGLIGENCE
SANCHEZ v. MESCO PETROLEUM GAS STATION
Appellate Division, A-4558-03T1, April 25, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17869

Judgment following a bench trial for the third-party plaintiff gas station and against the third-party defendant delivery company for $500 for wrongful delivery of fuel affirmed; judgment for the same amount had been entered in the principal cause of action against the third-party plaintiff and for the plaintiff, whose automobile was damaged as a result of having diesel fuel pumped into his tank; the third-party defendant’s driver pumped diesel fuel into a tank at the gas station that he erroneously assumed was for diesel fuel; the delivery company’s assertion that there should have been shared liability because the gas station did not properly color code the caps on the fuel tanks ignored the fact that the driver had disregarded the delivery company’s own protocols; the statements of the gas station’s employees to the driver should not have been admitted under N.J.R.E. 803(b) as an exception to the hearsay rule.

MUNICIPAL CORPORATIONS
DE LA ROCHE v. DORSEY
Appellate Division, A-5480-03T5, April 25, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17870

Law Division decision that the plaintiff Mayor did not have the authority to remove the defendant “long-time” municipal attorney and to appoint a replacement without the advice and consent of the defendant municipal governing council affirmed; the Mayor was elected in November 2003 and informed the municipal attorney that he would not be reappointed for the term that was to begin in January 2004; the council rejected the Mayor’s proposed successor; the municipal code provides for the Mayor to retain a municipal attorney with the advice and consent of the council for a one-year term that runs from January 1 of the year of appointment and “continuing until a successor is appointed and qualified”; the Law Division “correctly concluded” that the municipal attorney would continue to serve in his position until the council approved the Mayor’s proposed replacement.

HUSBAND AND WIFE
JEAN-FRANCOIS v. TATTEGRAIN
Appellate Division, A-4904-02T2, April 25, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17871

Family Part order that denied the plaintiff mother’s application for spousal support and medical coverage, that fixed the defendant father’s child support obligation at $105 per week, and that specified a visitation plan “as per previous consent of both parties” reversed and remanded for “amplification of the factual basis and a clarification of the reasons for the order”; as to spousal support, the “limited record” did not allow the Appellate Division (1) to “conclude with confidence” that the parties were married and (2) to assess fairly whether the Family Part properly exercised its discretion or whether the evidence supported the Family Part’s ruling that the plaintiff was voluntarily unemployed; as to child support, the Appellate Division was unable to determine from the record what information or figures were used to make the calculations or what expenses the Family Part considered; as to visitation, the order should have specified the terms of the parties’ agreement.

DRUNK DRIVING
STATE v. MARKE
Appellate Division, A-4844-03T1, April 25, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17867

Conviction of driving while under the influence of a narcotic affirmed; a witness observed the defendant drive onto the shoulder and return to the highway multiple times before driving off the highway into a trash can, a sign, and a tree; the defendant admitted to the responding officer that he had taken painkillers or an antibiotic, and the officer observed that the defendant was “very lethargic, somewhat dazed” and that he had droopy and watery eyes; the defendant’s blood sample tested positive for methadone; the officer had received training about drugs and had made 300 to 400 DWI arrests; over the defendant’s objection, the officer gave an opinion that the defendant had been operating a vehicle while under the influence of a drug; it was “clear” that the officer was not qualified to testify about any specific drug, but he was qualified to testify pursuant to N.J.R.E. 702 that he believed that the defendant was under the influence of some drug; the findings of fact and decisional rationale by the Municipal Court and by the Law Division in the trial de novo were “essentially correct,” and the factual findings were supported by the record.

INSURANCE
STOERRLE v. LIBERTY MUTUAL FIRE INSURANCE CO.
Appellate Division, A-2763-03T3, April 22, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17865

Denial of the motion by the plaintiff husband and wife to reconsider an order that granted summary judgment for the defendant insurer in an action to obtain personal injury protection coverage under an automobile insurance policy affirmed; the plaintiffs insured a car under a personal automobile insurance policy issued by the defendant, which provided PIP benefits, and insured three trucks under a commercial automobile policy issued by a second insurer, which did not provide PIP; after the plaintiffs were injured in an accident in one of the trucks, the defendant insurer denied their claim for PIP benefits; the Law Division correctly applied N.J.S.A. 39:6A-4 and 39:6A-7(b)(1); the plaintiffs’ choice to insure under the commercial policy without PIP coverage, “however infelicitous that choice turned out to be,” governed the outcome of this case.


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