NEW JERSEY LAWYER

DAILY BRIEFING      05/26/2005


News Briefs

CITING EXCESSIVE AWARD, JUDGE ORDERS NEW TRIAL
U.S. District Judge Joseph E. Irenas of Camden has ordered a new trial in a discrimination lawsuit, saying that the $4.08 million awarded to three workers fired by Atlantic City’s Flagship Resort Development Corp. was “grossly excessive.” The former marketing department employees alleged they were fired in 2000 for refusing a polygraph test to determine if they stole from another employee. Defense co-counsel Louis M. Barbone of Atlantic City’s Jacobs & Barbone said he is glad “to do it again,” while one of the plaintiff’s attorneys, Mark Pfeffer of Goldenberg Meckler Sayegh Mintz Pfeffer Bonchi & Gill in Atlantic City, expects the new trial’s results to be the same. A federal jury last June awarded $1.1 million in compensatory damages and $2.98 million in punitives. The defense filed for a new trial. 5-25-05

LEXISNEXIS CEO TO DELIVER SETON HALL KEYNOTE
Louis J. Andreozzi, chief executive of the $1.2 billion-a-year LexisNexis U.S. legal research and media giant, will deliver the keynote address at Seton Hall University Law School’s May 27 graduation ceremony. Andreozzi is credited with the movement to internet-based delivery by LexisNexis and its Martindale-Hubbell department. The law school expects to bestow more than 450 law degrees to graduates, as well as an honorary degree to Andreozzi. The commencement at PNC Bank Arts Center in Holmdel begins at noon. 5-25-05

AOC SEEKS CLERK FOR APPELLATE DIVISION
The Administrative Office of the Courts is looking for a new Appellate Division Clerk to replace James M. Flynn, who is retiring. Presiding Judge for Administration Edwin H. Stern praised Flynn for being “an integral part of our modernization efforts,” which included the AOC’s automated docketing system. Jeffrey A. Newman, a deputy clerk who helped the AOC launch its webcasting of Supreme Court arguments, has been named acting clerk effective June 1. 5-25-05

DEPT. OF CONSUMER AFFAIRS SETS ADR TRAINING PROGRAM
Lawyers interested in learning more about alternative dispute resolution are invited to attend a three-day seminar training session beginning June 21 by the ADR unit of the state Department of Consumer Affairs. While the training is designed primarily for those who plan to become volunteers for the ADR unit, a spokesman said volunteering is not required; he noted lawyers and paralegals likely will make up a big part of the attendance. For details and an application, call (973) 504-6100. 5-25-05

JUDGE SCOLDS FIRM FOR OVERZEALOUS CLASS-ACTION MARKETING
A U.S. district judge has chastised a Philadelphia law firm for overzealously marketing itself to members of a class-action suit. Judge Edwin H. Stearns of the U.S. District of Massachusetts, according to a published report, faulted Kline & Specter for launching websites to attract interest in the litigation and for subsequently sending letters with the salutation “Dear Client” to people who registered on the sites. The firm is representing users of Lupron in federal litigation that alleges that Tap Pharmaceutical Products encouraged doctors to over-bill Medicare for the prostrate cancer medication. 5-25-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, MAY 25, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, MAY 25, 2005.

THE SUPREME COURT has announced that it will release an opinion in SZALONTAI v. YAZBO’S SPORTS CAFE, A-6, on May 26, 2005. The issue on appeal in Szalontai addresses whether dismissal of the plaintiff’s negligence action against multiple defendants based on injuries that the plaintiff sustained when he fell into a sinkhole in a parking lot was appropriate where the plaintiff failed to take any depositions or to produce an expert report about the cause of the sinkhole during an extended discovery period and where the plaintiff did not request further discovery until after losing in arbitration.



APPROVED FOR PUBLICATION
INSURANCE
CARRASCO v. PALMA
Appellate Division, A-4804-03T5, approved for publication May 25, 2005. (8 pages). Facts-on-Call Order No. 92479

In a case involving multiple defendants, the analysis to determine whether a defendant is an underinsured motorist must be applied separately to each defendant. A plaintiff may collect UIM benefits to cover the difference between an award against a defendant and the defendant’s policy limit unless the plaintiff has already collected a total amount from all tortfeasors that is equal to or greater than his UIM limit.

NOT APPROVED FOR PUBLICATION
INSURANCE
CHIARELLA’S, INC. v. SPHERE DRAKE INSURANCE CO.
Appellate Division, A-427-03T5, May 25, 2005, not approved for publication. (21 pages). Facts-on-Call Order No. 18005

On the defendant insurers’ appeal, (1) partial summary judgment finding insurance coverage and awarding $194,700 to the plaintiff owners of a restaurant and bar against the defendants for the collapse of the second-floor ceiling, (2) order denying the defendants’ motion for reconsideration, (3) jury verdict awarding $113,888 to the plaintiffs for damages from decay discovered in the first-floor columns that could have led to the collapse of the building, and (4) order finding coverage for the column decay and denying the defendants’ motion for a new trial and for a judgment notwithstanding the verdict affirmed; contrary to the defendants’ arguments, the insurance policy could be found ambiguous because its complexity and “convoluted” terms made it “highly doubtful” that the insureds would have understood the policy “had they read it,” the jury verdict was not a “clear and convincing miscarriage of justice,” and the damages were proved adequately without an expert.

NEGLIGENCE
POHLOD v. KESSLER INSTITUTE FOR REHABILITATION
Appellate Division, A-5785-03T2, May 25, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18009

Summary judgment for the defendant physical rehabilitation center dismissing the plaintiff’s negligence complaint because the plaintiff failed to provide an affidavit of merit reversed; the plaintiff, who was at the center for rehabilitation following a fracture of his left hip, lost his balance, and an aide who was assisting him to the bathroom was unable to prevent him from falling; the motion court agreed with the center’s assertion that the plaintiff needed an expert to establish its standard of care and a violation of that standard; however, the fact that the accident occurred at a medical rehabilitation facility did not necessarily make it a medical malpractice case or require expert testimony to establish the standard of care; the question of whether the center’s actions were reasonable required no special expertise and was “well within” a jury’s ability to determine based on its common knowledge and experience.

MUNICIPAL CORPORATIONS
CASTORO v. BOROUGH OF HOPATCONG
Appellate Division, A-3775-03T2, May 25, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18007

Law Division determinations — that the plaintiffs’ claims that sought removal of the defendant Mayor from the positions of Mayor and Acting Borough Administrator were moot and that the plaintiffs’ application for attorney’s fees in connection with their request for documents under the Open Public Records Act was untimely — affirmed; the Mayor was appointed as Acting Borough Administrator without compensation for a limited time while the defendant Borough hired a full-time Borough Administrator; the Law Division properly determined that the plaintiffs’ claims were moot where, by the time the claims were heard, a full-time Borough Administrator had been hired and the Mayor had resigned from the Acting Borough Administrator position; the Law Division correctly concluded that the plaintiffs’ application for attorney’s fees was untimely under Rule 4:49-2.

EDUCATION
BOARD OF EDUCATION OF THE BOROUGH OF LINCOLN PARK v. BOARD OF EDUCATION OF THE TOWN OF BOONTON
Appellate Division, A-2155-03T3, May 25, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18004

Final decision of the State Board of Education — which affirmed the findings and determinations of the State Commissioner of Education that, absent express legal authorization, the defendant receiving board of education could not charge the plaintiff sending board of education for its legal costs incurred in litigation with the plaintiff — affirmed; the plaintiff and the defendant had engaged in several lawsuits over their arrangement, under which the plaintiff sends students from its district to a high school in the defendant’s district; although the plaintiff’s reliance on the American Rule was “not entirely appropriate” because the defendant sought to pass along an expense incurred only by the high school, the Commissioner’s reliance on the American Rule was not “wholly misplaced” because, as an interpretation of the rules on tuition rates for sending and receiving districts, the Commissioner’s decision was both “a legally sustainable exercise of authority over his area of expertise” and “a valid expression of public policy.”

HUSBAND AND WIFE
WALLACE v. BROWN
Appellate Division, A-2746-03T2, May 25, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18010

Portion of a post-divorce-judgment order that enforced the equitable distribution provision of the property settlement agreement requiring the defendant ex-husband to pay the plaintiff ex-wife one-third of his gross monthly pension benefits affirmed, but portion of the order that terminated the plaintiff’s right to receive a fraction of the defendant’s Social Security benefits under the PSA, effective on the date of her remarriage, reversed and remanded; as to the pension, the Family Part’s findings of fact and conclusions of law were supported by the record, and the defendant’s reliance on Painter v. Painter was “misplaced”; as to the Social Security benefits, although it properly concluded that the parties intended the benefits to be a form of alimony or support and not equitable distribution, there was no justification for the Family Part to have rewritten the PSA to include a remarriage provision.

HUSBAND AND WIFE
LANDE v. LANDE
Appellate Division, A-5625-03T3, May 25, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18006

Post-divorce-judgment order that directed the defendant ex-husband to continue paying $600 per week in alimony to the plaintiff ex-wife reversed; the settlement agreement that was incorporated into the divorce judgment required the defendant to pay $600 per week in alimony until the earliest of several events, including the plaintiff’s cohabitation with an “unrelated” person; based on the plaintiff’s cohabitation, the defendant moved to terminate alimony; reversal was appropriate where the evidence “clearly” demonstrated that the plaintiff was living with another man “as husband and wife in all respects, except for a marriage certificate,” and where the plaintiff did not provide any information about the other man’s contribution to her expenses.

NEGLIGENCE
ABRANTES v. ALARCON
Appellate Division, A-745-03T3, May 24, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18002

Post-trial orders in a personal injury action (1) denying the defendant a credit under the collateral source statute, N.J.S.A. 2A:15-97, affirmed and (2) denying the plaintiff’s motion for additur or a new trial reversed and remanded; the defendant sought a credit for future Social Security disability payments based on a governmental determination that the plaintiff was permanently disabled in the underlying accident, but the trial court properly determined that the defendant’s credit, which was given at the time of judgment, should be limited to the period that ended on the scheduled date for the first Social Security Administration review of the need for continuing the plaintiff’s disability benefits; however, appellate review of the plaintiff’s arguments for additur or a new trial was not appropriate where the order denying her motion had been entered by a substituted judge before the plaintiff had submitted a transcript of the trial to the judge and without making findings of fact.

ADMINISTRATIVE LAW
TUSKUSKY v. DEPARTMENT OF CORRECTIONS TRAINING ACADEMY
Appellate Division, A-3955-03T5, May 24, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18003

Final decision of the Police Training Commission that remanded the appellant trainee’s contested case to the Office of Administrative Law for a plenary hearing affirmed; the appellant was dismissed from a Department of Corrections training program after testing positive for cocaine, but the administrative law judge recommended the appellant’s reinstatement on appeal on September 22, 2003; the Commission obtained an order from the OAL that extended the 45-day period for its decision until December 24, 2003; on December 3, 2003, the Commission voted to remand the case, but it did not issue its order and decision until February 11, 2004; although the Commission did not issue its final written decision within the time allowed by the Administrative Procedure Act, the ALJ’s decision was not automatically “deemed adopted” where the Commission’s “good faith” was evidenced by its prompt scheduling and consideration of the case and where the 49-day delay was not so egregious that it constituted “inexcusable negligence” or “gross indifference.”

LANDLORD AND TENANT
FRANKEN v. IURATO
Appellate Division, A-6292-03T5, May 24, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18001

Dismissal of the plaintiff landlord’s complaint that demanded $2,600 in past-due rent, $400 for personal property that the defendant tenants allegedly removed, and $1,500 in attorney’s fees affirmed, judgment of $7,800 in favor of the defendants vacated, and the defendants’ counterclaim for $15,000 in compensation for repairs and improvements that they made to the leased residential premises dismissed; the trial court’s finding that the plaintiff had failed to establish that the defendants owed rent was supported by the record, but it erred by awarding the defendants six times the $1,300 monthly rent as damages for their wrongful removal from the premises under N.J.S.A. 2A:18-61.1h because that award was not supported by either the law or the evidence; the defendants failed to establish their entitlement to the relief sought in their counterclaim.


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