NEW JERSEY LAWYER

DAILY BRIEFING      06/01/2005


News Briefs

SUIT FILED HERE FOR ACCIDENT IN CANADA SETTLES FOR $476K
Although the slip and fall occurred in Canada, the subsequent suit was allowed to be filed in Middlesex County over the objections of the defendant. And now the plaintiffs, a Sussex County couple, have agreed to accept $476,000 from the Best Western International hotel chain. Carol and Rodney Fredda claimed the chain failed to adequately provide a bath mat, causing Rodney to fall and hurt his back while staying at its hotel in Calgary, Canada. Their attorney, Andrew A. Fraser of Sparta’s Laddey Clark & Ryan, successfully argued before Middlesex County Superior Court Judge Bryan D. Garruto in Fredda v. Hospitality Inns Ltd. that Best Western of Calgary participated in the chain’s worldwide marketing program, subjecting it to New Jersey jurisdiction. The sides settled after mediation before Douglas K. Wolfson of Greenbaum Rowe Smith Ravin Davis & Himmel in Roseland. 5-31-05

CUMBERLAND GETS NEW ASSIGNMENT JUDGE
Judge Georgia M. Curio on Wednesday takes over as assignment judge for the Cumberland County vicinage, replacing Judge George H. Stanger Jr., who retired effective Tuesday. Appointed to the bench by former Gov. Christie Whitman in 1995, Judge Curio has presided over Cumberland’s civil division since 2000 and occasionally filled in as acting assignment judge when Stanger was absent. 5-31-05

RETIRED JUDGE CRAMP JOINS MORRISTOWN FIRM
Retired Judge David S. Cramp has moved to the other side by joining Morristown’s Graham Curtin & Sheridan as of counsel. Cramp, who had been a judge since 1987, retired Feb. 7 at age 70 from his post as presiding judge of Morris County’s Civil Division. He did, however, continue to serve on recall until several vacancies were filled. Judge W. Hunt Dumont succeeded Cramp as presiding judge there earlier this year and Judge Robert J. Brennan, formerly with Morristown’s Porzio Bromberg & Newman, was sworn in last week and has taken over Cramp’s former chambers. 5-31-05

WYETH SEEKS MISTRIAL IN $200 MILLION PHEN-FEN AWARDS
Madison-based Wyeth has filed for a mistrial and to vacate two $100 million jury awards to users of its now-recalled phen-fen diet drugs. The motion says the Philadelphia Court of Common Pleas jury awarded Margie Paul and Elaine Katrician more than 400 times the cost for surgery that would correct the heart damage the women alleged the drug caused. They filed suit after opting out of a class-action settlement with Wyeth. Wyeth’s motion, filed by Philadelphia’s Dechert and Reed Smith, says the compensatory awards were “based on speculation, anti-corporate animus, or punishment.” 5-31-05

FACTS AFTER SENTENCING CAN BE CONSIDERED IN RE-SENTENCING
In a broadened interpretation of the Crosby and Booker federal sentencing rulings, a Southern District of New York judge has found that when re-sentencing, courts can consider events before and after the original sentencing. In U.S. v. Murray, District Judge Harold Baer granted a motion to re-sentence Alfred Murray, ruling that the convicted drug offender’s cooperation with a government prosecution could be considered. U.S. v. Crosby, decided by the 3rd U.S. Circuit Court of Appeals in February, addresses re-sentencing in the wake of U.S. v Booker, which made federal sentencing guidelines advisory. Murray is sentenced to 20 years in prison. 5-31-05



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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, MAY 31, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, MAY 31, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, JUNE 1, 2005.


APPROVED FOR PUBLICATION
JUDGMENTS
ENRON (THRACE) EXPLORATION & PRODUCTION BV v. CLAPP
Appellate Division, A-4042-03T5, A-4043-03T5, and A-4097-03T5, approved for publication May 31, 2005. (18 pages). Facts-on-Call Order No. 92485

Money judgments issued by courts in foreign nations may be filed with the Clerk of the Superior Court under the Foreign Country Money-Judgment Recognition Act, N.J.S.A. 2A:49A-16 to -24, without a prior judicial determination that recognizes the judgments and that authorizes their enforcement in New Jersey. In this case, the filing of judgments without prior notice and an opportunity to be heard did not violate the defendants’ constitutional due process rights because the judgments were entered by a court in the United Kingdom, which adheres to fundamental requirements of due process.

NOT APPROVED FOR PUBLICATION
CIVIL PROCEDURE
MENLO ENGINEERING ASSOCIATES, INC. v. SKN BUILDERS, INC.
Appellate Division, A-825-04T1, May 31, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18028

Money judgment for the plaintiff after a bench trial in an action to recover payment for engineering services rendered on two residential development projects affirmed; the defendants’ answer did not include a counterclaim; a few months after unsuccessful mediation, the defendants moved for leave to file a counterclaim; while the motion was pending, the trial court assigned a trial date, and the defendants’ motion was denied; the notice of appeal did not indicate that the defendants sought review of that denial, but they claimed that their right to a fair trial was prejudiced by the absence of the counterclaim; contrary to the defendants’ argument, there was nothing in the record that suggested that the defendants were hampered or precluded in their presentation of evidence by the absence of the proposed counterclaim.

WORKERS’ COMPENSATION
COLLINS v. POLY ONE CORP.
Appellate Division, A-3702-03T1, May 31, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18026

Order dismissing the petitioner’s workers’ compensation claim, which was based on pain and discomfort in his leg and lower back due to a herniated disc, and denying his motion for medical and temporary disability benefits affirmed; the judge of compensation found that the petitioner’s medical condition was not caused by his employment, that the condition was “arthritic and congenital in nature,” and that work exertion did not substantially contribute to the condition; contrary to the arguments on appeal, the judge of compensation (1) carefully reviewed the evidence presented in the hearing, (2) assessed the credibility of the witnesses, (3) made findings of fact that were supported by credible evidence, and (4) correctly applied the legal principles required in this matter; the Appellate Division deferred to the decision of the judge of compensation.

WORKERS’ COMPENSATION
UTICA MUTUAL INSURANCE CO. v. ALLIED WEB OFFSET PRINTING CORP.
Appellate Division, A-2310-04T2, May 31, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18027

Order granting the defendant insured’s motion to transfer the consolidated Law Division action to the Division of Workers’ Compensation for consolidation with the individual defendant’s pending claim petition against his employer reversed; the individual’s workers’ compensation case, his personal injury case, the plaintiff liability insurer’s declaratory judgment action, and the defendant insured’s transfer motion all stemmed from the individual’s injury that allegedly was caused by an employee of the insured, which was a company commonly owned with the individual’s employer; the case law did not support the order of transfer; the Law Division order should have only stayed the personal injury case until the workers’ compensation petition was resolved; although the issue of the individual’s employment status was crucial to the declaratory judgment action, the Division of Workers’ Compensation had no jurisdiction over the insurer, and the Law Division lacked the authority to compel the insurer to litigate in that forum; however, the insurer had the right to intervene in the Division of Workers’ Compensation if it chose to do so.

DRUNK DRIVING
STATE v. LINDSTROM
Appellate Division, A-6839-03T3, May 31, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18029

Conviction of driving while intoxicated as a third-time offender affirmed; in a trial de novo, the Law Division excluded the results of the defendant’s Breathalyzer tests and found him guilty based on the arresting officers’ observations of the defendant, the officers’ opinions that alcohol had “deleteriously affected” the defendant’s faculties, and a videotape of the defendant at police headquarters after his arrest, which included his admissions about his intoxication; the defendant’s argument that an individual could be convicted under N.J.S.A. 39:4-50 only when the evidence includes a blood alcohol content reading was contrary to both the statute and the case law; contrary to the defendant’s argument on appeal, the additional penalties and surcharges imposed by the Legislature on third-time offenders since State v. Hamm did not entitle him to a jury trial.

PUBLIC EMPLOYEES
MARTINEZ v. CITY OF JERSEY CITY
Appellate Division, A-5502-03T1, May 27, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18025

Final decision of the Merit System Board that dismissed the respondent City’s disciplinary charges against the petitioner police officer and that reinstated the officer reversed and initial decision of the administrative law judge that affirmed the termination of the officer by the City’s police department reinstated; the officer tested positive for cocaine but claimed that he had ingested the cocaine unknowingly after an unidentified individual put it in his drink at a local bar on the night before the random drug test; the ALJ found that the officer’s testimony was not credible, but the Board accepted the officer’s testimony and rejected the ALJ’s credibility determinations; based on the record, the Appellate Division was “persuaded” that the Board “did no more than disagree” with the ALJ’s credibility determinations, which was error and required reversal.

ESTATES AND TRUSTS
IN RE ESTATE OF AYRER
Appellate Division, A-4754-03T2, May 27, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18023

Dismissal of the plaintiff daughter’s claim — that the decedent mother’s inter vivos transfers of assets to the defendant daughter and the defendant’s children were voidable due to the defendant’s undue influence or the decedent’s incapacity — because it was untimely reversed and remanded; after the decedent died in 2000, the plaintiff, who was a 50 percent beneficiary of the decedent’s residuary estate, filed a complaint against the defendant, who was executrix of the estate, that did not assert claims of undue influence or incapacity; in her 2004 summary judgment motion, the plaintiff alleged that the inter vivos transfers were the product of undue influence or the result of incapacity; even if the trial court properly treated the plaintiff’s 2004 summary judgment motion as a motion to amend her complaint to assert those claims, it mistakenly determined that the plaintiff was dilatory in asserting those claims where the plaintiff was still seeking “rudimentary discovery” about the inter vivos transfers a few months before filing her 2004 motion.

PARENT AND CHILD
WEINBERG v. WEINBERG
Appellate Division, A-4890-03T5, May 27, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18024

Post-divorce-judgment order that reduced the defendant father’s child support obligation for the parties’ two children by 10 percent and that required a re-evaluation of the child support amount in May 2006 affirmed; the defendant sought a reduction because his current income was about half of his income in 2000, when his child support obligation was originally calculated; there was no justification to second-guess the trial court’s decision about child support (1) where the defendant, who worked on commission, knew when the parties executed their property settlement agreement that his available funds would vary over time, (2) where the record did not indicate that the defendant’s 2003 earnings represented a permanent downturn in his earnings, and (3) where the trial court correctly concluded that the Child Support Guidelines did not apply because the parties’ combined weekly net income exceeded $2,900.


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