NEW JERSEY LAWYER

DAILY BRIEFING      05/20/2005


News Briefs

BAIL PROCEDURES IN MUNICIPAL COURTS REVAMPED
The Administrative Office of the Courts has released Directive 9-05, which updates — for the first time in 20 years — bail procedures in municipal court. Among the changes is replacement of local bail schedules with a uniform, statewide schedule, as well as a revamp of how bail is determined on bench warrants for failure to pay fines or comply with a sentence. Previously, bail automatically was set equal to the amount owed. The directive rejects that practice, instructing that in such cases bail must be set at a reasonable amount, taking into consideration a defendant’s individual circumstances so as to “give indigent defendants a better opportunity to make bail and … pay or otherwise perform the remainder of their obligations.” For the full report, log on to njcourtsonline.com/bail.pdf. 5-19-05

CARPENTER GETS $2.25 MILLION SETTLEMENT FOR FALL
A carpenter who broke his back in a 32-foot fall has received a $2,250,000 settlement from the contractor/owner of the beachfront Brigantine home he was working on in 1999. Lee v. Gutterman was settled five days into trial in Atlantic County. Attorneys and experts for Sean Lee said the homeowners, who were operating as general contractors, were negligent for failing to ensure the subcontractors’ employees used fall-protection devices, and that the job should have been shut down due to the risk of high winds that day. The broken vertebra resulted in permanent internal injuries. Lee already had settled with the subcontractor for $235,000. The plaintiff was represented by Paul R. D’Amato and Steven R. Cocchi of D’Amato Wolfe Cocchi of Linwood. Defendants Michael and Cheryl Gutterman were represented by Dennis M. Marconi of Barnaba & Marconi of Hamilton. Judge Daryl F. Todd presided. 5-19-05

WARREN WILENTZ CITED FOR ‘LIFETIME ACHIEVEMENT’
Woodbridge attorney Warren W. Wilentz was tabbed by the Middlesex County Bar Association to receive its Lifetime Achievement Award, and Supreme Court Justice Barry T. Albin will do the honors next week during a ceremony at Drumthwacket, the governor’s residence. The past president of the Middlesex Bar is chairman and senior partner at Wilentz, Goldman & Spitzer and, according to the association, was selected for his “combined public service at the highest levels, zealous and effective representation of clients, education and monitoring of young lawyers, and a lifelong commitment and devotion to the practice of law.” Others being feted at the May 25 event are Manny Gerstein as Lawyer of the Year and Cheryl M. Spilka as the Martin S. Goldin Family Law Award honoree. 5-19-05

NEW CHIEF ASSISTANT PROSECUTOR IN MORRIS
The Morris County Prosecutor’s Office has a new chief assistant, Michael Wright, the second-highest ranking black in any of the state’s counties. Attorney General Peter C. Harvey, who attended the swearing-in this week, called Wright’s appointment “a milestone.” He will be in charge of the trial division and succeeds Deborah Factor, who had resigned. Wright became the first black assistant prosecutor in Morris County 15 years ago. He left in 1994 for private practice, working in criminal defense and as a municipal prosecutor in Edison, Plainfield and Woodbridge. The highest-ranking black prosecutor is Essex County’s Paula T. Dow. 5-19-05

MILITARY RUNNING SHORT, BUT NO DRAFT, GENERAL TELLS STATE BAR
The U.S. military is precariously undermanned, but there is little chance the government would institute a national draft, Gen. Barry R. McCaffrey told attendees Thursday at the New Jersey State Bar Association’s annual meeting. McCaffrey is a former commander-in-chief of U.S. Armed Forces Southern Command, former national drug czar and was assistant to Colin Powell when he was chairman of the Joint Chiefs of Staff. “The Army and Marine Corps are going over the cliff in the next year,” McCaffrey said in a keynote speech to about 300 attendees in Atlantic City. While he said the armed forces couldn’t adequately support the war in Iraq, he added there’d be no draft because it has no political support. He also said border patrol programs are undermanned and that the Coast Guard should double its force of about 35,000. 5-19-05



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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, MAY 19, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, MAY 19, 2005:

EDUCATION
BOARD OF EDUCATION OF THE CITY OF MILLVILLE v. NEW JERSEY DEPARTMENT OF EDUCATION
New Jersey Supreme Court, A-4, May 19, 2005. (28 pages). Facts-on-Call Order No. 92469

The State of New Jersey must ensure that full funding is available for approved preschool programs, but the Department of Education may require Abbott districts to reallocate funds from other district budget accounts to make up for shortfalls in preschool programs. The Department must replace the funds that are reallocated through supplemental funding unless it can demonstrate that the districts do not need the money.

EDUCATION
BOARD OF EDUCATION OF THE CITY OF PASSAIC v. NEW JERSEY DEPARTMENT OF EDUCATION
New Jersey Supreme Court, A-3, May 19, 2005. (13 pages). Facts-on-Call Order No. 92470

For the funding of preschool programs in Abbott school districts, adjustments to state aid formulas that are not calibrated with program costs cannot be made late in the school year unless the school district has a meaningful opportunity to present information that is related to actual costs and the adjustment is then realigned with the actual costs.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, MAY 20, 2005.



APPROVED FOR PUBLICATION
EMPLOYMENT LAW
NARDELLO v. TOWNSHIP OF VOORHEES
Appellate Division, A-1811-03T2, approved for publication May 13, 2005. (11 pages). Facts-on-Call Order No. 92471

For purposes of a CEPA claim, a number of separate but minor instances of behavior against an employee may combine to establish a pattern of retaliatory conduct and may constitute an adverse employment action.

NOT APPROVED FOR PUBLICATION
TORT CLAIMS ACT
KALLERT v. TOMS RIVER REGIONAL SCHOOLS
Appellate Division, A-5560-03T5, May 19, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17975

Summary judgment for the defendant school district based on the Tort Claims Act in an action arising from a trip-and-fall accident reversed; while attending a dance class in the defendant’s cafeteria, the plaintiff tripped on the wheel of a folded table that had not been placed flush against the wall; summary judgment was not appropriate to resolve the questions of (1) whether a table that was not placed flush against the wall and that was arranged so that its wheel protruded beyond the plane of the table created a “substantial risk of injury” where it was reasonably foreseeable that participants in the dance class would be at liberty to move freely and to respond to the instructor’s directions and (2) whether the defendant acted in a “palpably unreasonable” manner where its employee was on notice about the dance class but failed to ensure that the table’s wheels were kept within the plane of the table.

LAND USE
LENTINI v. BOARD OF ADJUSTMENT OF THE BOROUGH OF FAIR LAWN
Appellate Division, A-3540-03T3, May 19, 2005, not approved for publication. (21 pages). Facts-on-Call Order No. 17976

Order affirming the defendant Board of Adjustment’s denial of the plaintiff’s application for a use variance to add a drive-thru to his fast-food restaurant reversed and remanded; as to the positive criteria for the variance, the traffic experts of both parties, the architect, and a neighboring property owner agreed that the plaintiff’s proposal would improve traffic safety, and the plaintiff’s planning expert stated that the landscaping would improve the area’s aesthetics; as to the negative criteria, all of the experts “unequivocally” stated that the drive-thru would not cause any substantial detriment due to glare, noise, emissions, or traffic; the Board’s denial was arbitrary, capricious, and unreasonable because it was not supported by credible evidence and because it was contrary to all of the experts’ proofs.

PARENT AND CHILD
PERCY v. PERCY
Appellate Division, A-312-04T5, May 19, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17974

Post-divorce-judgment order that amended a settlement agreement that was incorporated into the parties’ final judgment of divorce to extend a parenting time arrangement for the summer of 2003 to all later years reversed; the agreement provided for the defendant father to have parenting time from July 1 to August 16, 2003; the defendant filed a motion for parenting time from July 1 to August 31, 2004 and for eight consecutive weeks of parenting time during every summer thereafter; the plaintiff mother opposed the motion due to one child’s tutoring schedule, the children’s chronic medical conditions, and the defendant’s work schedule; the trial court committed “clear error” by “arbitrarily” continuing the parenting-time schedule, which the parties had agreed to follow for only one year, without hearing testimony to resolve the factual issues that were relevant to the best interests of the children.

ATTORNEYS
DRAESEL v. PARDES
Appellate Division, A-323-03T3, May 18, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 17972

Judgment for the defendant attorney and the defendant law firm after a jury verdict of no cause of action, denial of the plaintiff clients’ motion for a new trial, and denial of the defendants’ motion for attorney’s fees under Rule 4:58-3 in a legal malpractice action affirmed; the defendants represented the plaintiffs in their purchase of a home; the seller voided the sales contract after its requirements were not met by the specified deadline; after an unsuccessful suit for specific performance against the seller, the plaintiffs sued the defendants for malpractice and rejected the defendants’ settlement offer; contrary to the plaintiffs’ arguments on appeal, (1) there was sufficient evidence for the jury to conclude that the defendants were not negligent, (2) the trial court’s remarks to the plaintiffs’ expert were harmless error, and (3) the testimony of a defense witness, who was an attorney, was not an impermissible lay opinion; moreover, the trial court did not err by denying the defendants’ motion for attorney’s fees because the plaintiffs’ claim was for unliquidated damages.

EMPLOYMENT LAW
MIANULLI v. OLD BRIDGE TOWNSHIP POLICE DEPARTMENT
Appellate Division, A-4812-03T2, May 18, 2005, not approved for publication. (26 pages). Facts-on-Call Order No. 17970

Summary judgment for the defendant employer in an action alleging wrongful discharge in violation of the Conscientious Employee Protection Act and sexual harassment and wrongful discharge in violation of the Law Against Discrimination affirmed; the plaintiff dispatcher, who was a probationary employee, complained to his supervisor about a female co-worker’s hostility toward him and her disregard for 911 protocol; about a month later, the defendant decided to terminate the plaintiff based on (1) an investigator’s report that identified deficiencies in the plaintiff’s performance and (2) an ordinance that required probationary employees to be either hired or terminated at the end of their probationary period and that did not permit an extension of the probationary period; the trial court properly granted summary judgment because the plaintiff failed to rebut the defendant’s legitimate non-discriminatory reasons for terminating him and because he failed to establish a prima facie case that he was subjected to a hostile work environment or fired due to his sex.

LAW AGAINST DISCRIMINATION
OKEKE v. LUCENT TECHNOLOGIES, INC.
Appellate Division, A-35-03T5, May 18, 2005, not approved for publication. (23 pages). Facts-on-Call Order No. 17971

Summary judgment for the defendant employer and the defendant supervisors in an action alleging, among other things, racial discrimination and retaliation in violation of the Law Against Discrimination and the New Jersey Constitution and constructive discharge and denial of the plaintiff’s motion to amend his complaint to add additional claims affirmed; the plaintiff, who was an African-American internal audit manager, alleged that the employer discriminated against him and other African-Americans and resigned after the employer’s Equal Employment Opportunity Office found no basis for his allegations; contrary to the plaintiff’s arguments on appeal, (1) the trial court properly exercised its discretion by denying the motion to amend and (2) summary judgment was properly granted because the plaintiff failed to establish his claims for racial discrimination and retaliation and because the plaintiff did not establish a prima facie case of hostile work environment or “severe or pervasive” conduct that altered the terms of employment.


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