NEW JERSEY LAWYER

DAILY BRIEFING      05/12/2005


News Briefs

NEW JERSEY SUPREME COURT TO REVIEW FRAUD CASE
The New Jersey Supreme Court will review the question of the appropriate burden of proof under the New Jersey Insurance Fraud Prevention Act. In Liberty Mutual Insurance Co. v. Land, the plaintiff insurance company contended the judge erred in instructing the jury that its burden of proof was clear and convincing evidence rather than a preponderance of the evidence. Although the Appellate Division said the proper burden of proof was the tougher clear-and-convincing-evidence standard, it reversed on other grounds a jury verdict for the insurer and remanded the case for a new trial with the tougher standard. 5-11-05

PRIVATE-EYE BILL BEFORE SENATE
The state Senate is taking up a bill Thursday that sets new ground rules for private investigators. In amending a 1939 statute for investigators, A-2566 expands private eyes’ information-gathering authority to include details on the background and lineage of people and organizations, genealogical and other relations between parties, and the background of employees, agents and contractors. The bill also clarifies that attorneys and their employees are exempt from registering as private eyes. If approved, the measure would return to the Assembly for a vote on amendments. One of the bill’s early drafts had included bounty hunters in the licensing provisions. That, though, was removed. 5-11-05

ETHICS CODE BEING DRAFTED FOR STATE EMPLOYEES, VENDORS
Virtually all state employees and companies seeking to do business with the state will face new professional standards under an ethics code ordered by acting Gov. Richard J. Codey. “These changes will help meet our goal of keeping government accountable,” Codey said in directing the state’s Ethics Reform Commission draft a code that would apply to all employees of the executive branch and independent authorities, and a separate code for businesses interacting with state workers. The codes were recommended by special ethics counsel named by Codey — retired Justice Daniel J. O’Hern and Seton Hall Law Professor Paula A. Franzese. 5-11-05

CIRCUIT COURT SAYS POLICE WENT TOO FAR IN STRIP SEARCH
In another indication the judiciary won’t tolerate overzealous police, the 11th U.S. Circuit Court of Appeals in Atlanta has allowed two motorists to sue an officer for allegedly strip-searching and physically abusing them during an arrest. In Evans v. Stephens, the panel said the officer was not entitled to lawsuit immunity often granted police accused of civil rights violations because the officer’s actions went “well beyond the hazy border” between what is and is not lawful. After stopping a black college student for speeding and arresting him for refusing to take a breath alcohol test in Zebulon, Ga., in 1999, the white officer allegedly took him and a passenger in the car to a county jail, ordered them to strip, probed the driver’s buttocks with a “cold black object” and said the pair would be raped. The two were released the next day; the driver later pleaded guilty to reckless driving. 5-11-05

WE’LL HAVE A SHAKE, BUT HOLD THE FINGER
If necessity is indeed the mother of invention, a severed-finger accusation is the mother of free milkshakes. To offset the negative publicity surrounding a woman’s claim of finding a severed finger in her chili at a Wendy’s restaurant in San Jose, Calif., in March, the fast-food chain plans this weekend to give away 14 million shakes at its stores nationwide, even though Anna Ayala’s claims were later deemed a hoax and she now faces a charge of attempted larceny. 5-11-05

CORRECTION
An incorrect surname for Deborah Jacobs, executive director of the New Jersey chapter of the American Civil Liberties Union, appeared in the May 3 Daily Briefing.



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, MAY 11, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, MAY 11, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, MAY 12, 2005.


APPROVED FOR PUBLICATION
LAND USE
DaPURIFICACAO v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF UNION
Appellate Division, A-5308-02T1, approved for publication May 11, 2005. (10 pages). Facts-on-Call Order No. 92450

The housing of racing pigeons in a coop located on residential property does not constitute an accessory use.

SENTENCING
STATE v. MOORE
Appellate Division, A-6077-02T4, approved for publication May 11, 2005. (9 pages). Facts-on-Call Order No. 92451

The defendant, who broke the jaw of a corrections officer while awaiting sentence after pleading guilty to other charges, properly received a consecutive sentence after pleading guilty to second-degree aggravated assault of the corrections officer under N.J.S.A. 2C:44-5i — which requires the sentence imposed for assaulting a corrections officer to run consecutively to any term of imprisonment “currently being served” — because the statute unambiguously refers to the time that the sentence for assaulting the corrections officer was imposed.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
RIOS v. PASSARELLI
Appellate Division, A-6853-03T3, May 11, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17939

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; although the plaintiff staffing assistant produced objective, credible medical evidence of her injury, she failed to present sufficient evidence to create a genuine issue of fact that the injury had a serious impact on her life (1) where her employment was not “interrupted, curtailed, or modified,” (2) where she could perform all of the tasks of ordinary living, even though she experienced some discomfort, and (3) where she was prevented from taking part in some activities with her 4-year-old daughter.

LAND USE
ABLE OIL CO. v. ZONING BOARD OF ADJUSTMENT OF THE TOWN OF NEWTON
Appellate Division, A-1174-04T3, May 11, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17938

Reversal in this prerogative writs action of the defendant Zoning Board’s denial of a certificate of a legal pre-existing nonconforming use for the plaintiff’s operation of its property as a fuel storage, sales, and distribution facility affirmed; contrary to the Board’s arguments, there was no judicial error; it was proper for the trial court to consider the legal question of whether the destruction of a warehouse by fire had in turn destroyed the principal structure and use of the property for fuel storage and distribution; the trial court properly applied Krul v. Bd. of Adj. of Bayonne, which held that, where structures have been only partially destroyed by fire, a court must both consider the condition of all of the structures comprising the use in the complex as a whole and determine the functional use of the property in deciding whether a use was substantially destroyed and whether a nonconforming use was abandoned; the trial court also correctly found that the zoning ordinance had previously allowed fuel storage and distribution facilities.

REAL PROPERTY
KEEFE v. DUNHAM
Appellate Division, A-3912-03T2, May 11, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17940

Chancery Division final judgment finding that the defendant State of New Jersey’s 1937 conveyance of a tract of riparian land to three brothers was void ab initio and that the State had title to the tract free of any interest of any other named party affirmed; the Chancery Division properly concluded that the date of delivery of the riparian grant, and not the date of the grant, was controlling and that the conveyance of the grant became effective after the partition of the parcel; because the brothers did not own the land adjoining the riparian tract as tenants in common on the effective date of the conveyance, the deed was void, and ownership of the riparian tract reverted to the State; the elements of the doctrines of equitable estoppel and substantial compliance were not met in this case.

CIVIL PROCEDURE
NOTTE v. MERCHANTS MUTUAL INSURANCE CO.
Appellate Division, A-2073-04T3, May 11, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17941

Order denying the plaintiff leave to amend his complaint to include wrongful discharge and retaliation claims because they did not relate back to his original complaint reversed and remanded; when the original complaint was filed, the plaintiff’s claims under the Conscientious Employee Protection Act were time-barred based on the statute of limitations; the defendant employer and the defendant supervisor moved for summary judgment based on the statute of limitations, and the plaintiff cross-moved for leave to amend his complaint; because his additional claims were time-barred by that point, the plaintiff argued that they involved the identical subject matter of the original complaint and therefore related back to the date of the filing of the complaint; under Rule 4:9-3, the amended claim must relate back only to the underlying transaction or facts that were alleged in the original pleading and not to “technically asserted discrete claims or counts”; the proposed amended claims in this case demonstrated substantially the same wrong with regard to the same set of occurrences and based on the exact same set of facts that were set forth in the original complaint.

DOMESTIC VIOLENCE
WALKER v. WALKER
Appellate Division, A-5177-03T5, May 11, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 17942

Final domestic violence restraining order against the defendant husband affirmed; among other things, the plaintiff wife alleged that, between April 3 and April 12, 2004, the defendant (1) honked his horn while driving by her residence on multiple occasions, (2) parked his vehicle near her residence and remained there for a period of time on three occasions, (3) once entered her truck, which was parked in her driveway, and (4) made a series of harassing phone calls, some of which occurred after midnight; the trial court properly concluded that the defendant’s conduct constituted harassment under N.J.S.A. 2C:33-4(a) and (c), and its rejection of the defendant’s assertions that he was innocent and that his conduct was based on proper purposes was “well supported” by the record; however, the trial court’s findings on stalking could not be sustained and could not provide a predicate for a finding of an act of domestic violence.

HUSBAND AND WIFE
HINDS v. HINDS
Appellate Division, A-2432-03T5, May 11, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17937

Order denying the plaintiff ex-husband’s motion to reduce child support and to have his oldest daughter declared emancipated and granting the defendant ex-wife’s cross-motion to compel the plaintiff to pay 55.26 percent of child-care costs for the youngest child, pursuant to a dual judgment of divorce, and for related attorney’s fees affirmed; substantial, credible evidence supported the findings of the motion court; although a technology college certified that the oldest daughter had ceased attending classes after June 22, 2003, the motion court relied “substantially” on the defendant’s proofs, including an October 16, 2003 receipt payable to the college and a letter from the college indicating that the daughter would not graduate until February 2004; the motion court did not abuse its discretion (1) by finding no substantial change in circumstances because only one month had passed from the time that the plaintiff lost one job, filed the motion to reduce child support, and obtained another job and (2) by awarding attorney’s fees based on the plaintiff’s “bad faith” in bringing the “totally unnecessary” motion.


To Order Decisions

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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