NEW JERSEY LAWYER

DAILY BRIEFING      05/23/2005


News Briefs

$2.9M FOR BUS PASSENGER BLINDED IN CRASH
Winsome McPherson, 38, was riding a bus on Route 17 in Paramus one night in December 2000 when a tire and rim separated from a car going the opposite direction and smashed into the side window of the bus where she was seated. The bus driver hit the brakes, causing McPherson’s face to strike the window frame. Glass showered into both her eyes and she was left legally blind. Ten weeks before the accident, the driver of the car replaced his tires at a Mavis Discount Tire store. McPherson’s lawyer, Gregg Alan Stone of Kirsch, Gelband & Stone in Newark, said Mavis had failed to replace and tighten the lug nuts and studs that held the wheel on the car, which had 150,000 miles on it. Last week, a jury in Passaic County found Mavis 70 percent responsible and Coach Leasing bus company 30 percent at fault. It awarded McPherson $2.9 million. Attorneys in McPherson v. Shortline were Robert D. Kretzer of Kretzer, Reinman & DePascale in Jersey City for Mavis, Floyd G. Cottrell of Newark for Coach Leasing, and Albert C. Buglione of DeYoe, Heissenbuttel & Piekarsky in Wayne for the driver of the car. 5-20-05

AD RULES FOR LAWYERS ALLOW MINIMAL CLIENT PRAISE
A client can tell her lawyer she thinks she’s a humane, caring professional and she’s the most knowledgeable attorney in her specialty, but the lawyer can use only half that statement in a testimonial. The state’s Committee on Attorney Advertising has concluded clients aren’t qualified to compare one lawyer to any other. Endorsements used in advertising must be limited to the client’s perception of the level of service and the lawyer’s sympathy for the client, and should stay away from any comparative statements. Endorsements “are necessarily given by a person who does not have the professional expertise to qualitatively judge the results achieved by the lawyer and, therefore, do not furnish relevant information to be considered in the selection of counsel,” the committee wrote in its Opinion 33. 5-20-05

JUDGE-TO-JUDGE CALL RESULTS IN A REPRIMAND
The New Jersey Supreme Court has reprimanded a municipal judge from Lawnside for making a telephone call to the law office of another municipal judge concerning a matter before the other judge involving a member of the Lawnside judge’s staff. Judge Caryl M. Amana had waived her right to a hearing on the matter before the high court and consented to the sanction recommended by the Advisory Committee on Judicial Conduct. Amana was cited for conduct that brings the office of a judge into disrepute. 5-20-05

PARTNERSHIP ACT GRAY AREAS FILLING IN
The Domestic Partnership Act of 2004 is getting a workout in the courts. Judges in two recent cases have read legislative intent into areas not mentioned in the law. Clark E. Alpert, the lawyer for the successful plaintiffs in one of the cases, said there’s virtually no end to how decisional law may expand the statute. Alpert, of Alpert Goldberg Butler Norton & Peach in West Orange, predicts many more cases related to the law will reach the courts “because it affects almost every aspect of human behavior.” For the full story, see the May 23 New Jersey Lawyer. 5-20-05

BISSELL, IRENAS TO RECEIVE FEDERAL BAR AWARDS
Chief U.S. District Judge John W. Bissell and senior U.S. District Judge Joseph E. Irenas will receive the William J. Brennan Jr. Award June 9 at the 29th annual dinner of the Association of the Federal Bar of the State of New Jersey. Both have 40 years’ service in the law. Bissell became a judge in Essex County in 1978, and in 1982 President Reagan chose him for the federal bench. Irenas was a partner at McCarter & English in Newark before his appointment to the U.S. District Court in 1992. In addition to presenting the Brennan awards, Roseland attorney Joseph A. Hayden Jr. will be installed president, and John J. Barry Memorial Scholarships will be awarded to students from the state’s three law schools. The dinner begins at 6:15 p.m. at Mayfair Farms in West Orange. Tickets are $100. Call (732) 517-0727 for details. 5-20-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, MAY 20, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, MAY 20, 2005.

THE SUPREME COURT has announced that it will release opinions in STATE v. R.B., A-51, and CUMBERLAND MUTUAL FIRE INSURANCE CO. v. MURPHY, A-46, on May 23, 2005. The issues on appeal in R.B. address whether the minor’s victim statement, which related his sexual encounters with the defendant, was admissible under N.J.R.E. 803(c)(27) and whether the jury instructions about child sexual abuse accommodation syndrome constituted plain error. The issue on appeal in Murphy addresses whether the exclusionary provisions of the homeowner’s insurance policy applied to preclude coverage for the conduct of the insured’s teenage son in firing a BB gun at passing cars.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON FRIDAY, MAY 20, 2005.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
BELANSEN v. LISITSKI
Appellate Division, A-6913-03T3, May 20, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17983

Dismissal of a legal malpractice action for failure to provide an affidavit of merit affirmed; because the plaintiff failed to provide any affidavit of merit whatsoever, he did not substantially comply with the Affidavit of Merit Statute; the common knowledge doctrine did not apply because the underlying bankruptcy procedures were not a matter of common knowledge; contrary to the plaintiff’s assertion, the $95,000 retainer that he paid the defendant attorney the day before he filed for bankruptcy was not an illegal preferential treatment that should have been paid back to the benefit of all of the creditors; the plaintiff could not assert a claim against the defendant management company because any harm done was to a corporate entity and because the plaintiff could not sue on behalf of the corporate entity in his individual capacity.

INSURANCE
FIRER v. GREAT AMERICAN INSURANCE COS.
Appellate Division, A-3281-03T1, May 20, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17981

Order denying the plaintiff insured’s summary judgment motion for a declaration that a step-down provision in his employer’s automobile insurance policy did not apply to his uninsured motorist benefits claim under his personal policy affirmed; while driving a vehicle insured under a commercial policy issued to his employer, the plaintiff had an accident with an uninsured driver; the plaintiff’s own insurer, which was the same as the employer’s insurer, asserted that, due to a step-down clause in the employer’s policy, the lower limit in the plaintiff’s policy applied to his UM claim; although the New Jersey Supreme Court has heard oral arguments in Pinto v. N.J. Mfrs. Ins. Co. — on which the motion court relied and which rejected all of the objections that the plaintiff in this case raised against enforcement of step-down clauses — in the absence of guidance to the contrary from the Supreme Court, the matter is governed by the Pinto analysis.

NEGLIGENCE
CARTER v. ALI
Appellate Division, A-6560-03T5, May 20, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17982

Jury verdict for the plaintiff for $200,000 in an automobile negligence action affirmed; the plaintiff did not serve the report of her treating neurologist on the defendants until February 26, 2004, and the trial began on March 3, 2004; although the late amendment to the plaintiff’s answers to interrogatories should have been disregarded, defense counsel was in possession of all of the information about the plaintiff’s back injury and treatment and was prepared to rebut the neurologist’s opinion; thus, the defendants were not prejudiced “despite the blatant non-observance of Rule 4:17-7”; the $200,000 award was “generous but not so excessive” for the court to determine that it was “a manifest denial of justice.”

REAL PROPERTY
ROSENGARTEN v. COUNCIL OF THE CITY OF PERTH AMBOY
Appellate Division, A-3316-03T1, May 20, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17980

Orders granting summary judgment to the municipal defendants, dismissing the plaintiff developer’s complaint seeking inverse condemnation, and denying the plaintiff’s summary judgment motion affirmed; the plaintiff sued when his efforts to develop unimproved property were impeded by the City’s delay in implementing a redevelopment plan that involved the plaintiff’s property; contrary to the plaintiff’s appellate arguments, (1) lost economic opportunities and reductions in the value of property during governmental deliberations, absent extraordinary delay, do not constitute a compensable taking and (2) there was no basis to dispute the motion court’s determination that the delay and conduct of the City and the redevelopment agency were not unreasonable, that the condemnation would occur in the near future, and that any lost value from the delay would be remedied with a proper valuation date.

ESTATES AND TRUSTS
DeBECK v. DeBECK
Appellate Division, A-6772-03T1, May 19, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17978

Chancery Division decision finding that transfers of property, including the family home, by the decedent father, who died intestate, to the defendant son were inter vivos gifts that should not be included in the father’s estate for distribution among his children under the intestacy laws affirmed; the plaintiffs were two adult children of the decedent, and the defendant was an adult who had “never achieved his independence” and had, after the death of his mother, become responsible for the decedent’s care; the parties agreed that the decedent never lost his competence and that the defendant was dependent on the decedent; the Chancery Division properly concluded that the defendant did not stand in a confidential relationship with the decedent and that the defendant had not exerted undue influence over the decedent; there was no evidence suggesting that the decedent’s donative intent was the product of anything but his free will.

HUSBAND AND WIFE
PIRRO v. PIRRO
Appellate Division, A-3322-03T1, May 19, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17977

Denial of the defendant ex-husband’s post-divorce-judgment motion to modify his child support and alimony obligations based on changed circumstances reversed and remanded for discovery and a hearing; the parties entered into a property settlement agreement that required the defendant to pay $2,000 per month in child support for the parties’ three children and to pay $1,000 per month in term alimony; discovery and a hearing were required because the defendant had made a prima facie showing of permanent changed circumstances based on a “significant” reduction in his annual income from $118,000 to about $30,000 after his Internet spamming business ended and on his inability to pay his support obligations at the level agreed to in the PSA.

PARENT AND CHILD
IN RE ADOPTION OF BABY “S.”
Appellate Division, A-6462-03T4, May 18, 2005, not approved for publication. (49 pages). Facts-on-Call Order No. 17979

Judgment that vacated a termination of parental rights and surrender of custody that the plaintiff mother signed in favor of the defendant adoption agency reversed and remanded to allow the baby’s adoptive parents to file a complaint seeking adoption; the record did not support the trial court’s conclusions (1) that the mother was under the influence of pain medication when she executed the document terminating her parental rights, (2) that the medication “deprived her of the ability to make a knowing and voluntary choice,” and (3) that the surrender executed by the mother was the product of fraud; the trial court erred by concluding that the adoption agency’s failure to comply with all of the regulatory requirements warranted the invalidation of the mother’s surrender of the baby because whether a regulation was violated was evidential as to whether the surrender was freely and voluntarily given, but it was not conclusive; there was no specific finding that the mother acted under duress when she executed the surrender, and there was “no stress other than that which naturally inheres in an adoption context.”


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