NEW JERSEY LAWYER

DAILY BRIEFING      06/13/2005


News Briefs

JUDICIARY NOMINATION COMPROMISE ENDS LONG DEADLOCK
The compromise reached between the White House and New Jersey’s two U.S. senators, Democrats Jon S. Corzine and Frank M. Lautenberg, over nominees for the state’s federal bench ends nearly two years of controversy and stalemate. Renee M. Bumb, an assistant U.S. attorney in Camden; Noel L. Hillman, a U.S. Justice Department official, and U.S. Magistrate Judge Susan D. Wigenton are part of the package deal that includes attorney Peter G. Sheridan. The stalemate primarily centered over Sheridan, whose nomination in August 2003 drew jeers in South Jersey because he was slated to join the federal bench in Camden even though his law practice roots are in Trenton. The compromise would put Bumb, a Gloucester County resident, in the Camden seat, while Sheridan and the two others would sit in U.S. District Court in Newark. They would replace former Judge Stephen M. Orlofsky and Judges William H. Walls and William G. Bassler, both on senior status, and chief Judge John W. Bissell, who retires in September. Bissell has been publicly pushing for the logjam to be ended quickly, noting that as a result of the vacancies, other judges have been hard-pressed to pick up the slack. The four prospective judges are expected to be confirmed easily. 6-10-05

NJ ACCOUNTS FOR $19.4M OF CATHOLIC CHURCHES’ $1B FOR SEX CASES
New Jersey’s Roman Catholic dioceses have paid $19.4 million since 1950 to resolve cases alleging sexual abuse by their priests, according to recent reports from the dioceses. The Paterson diocese, which covers Sussex, Morris and Passaic counties, has paid $7.8, million; the Camden diocese, covering six southern counties, has paid $6.1 million; the Newark diocese, comprised of Essex, Union, Hudson and Bergen, spent $3.2 million; the Trenton diocese, covering Burlington, Mercer, Monmouth and Ocean, paid $1.5 million; and the Metuchen diocese, serving Middlesex, Somerset, Hunterdon and Warren, has spent $796,000. More than $1 billion in payouts has been reported by dioceses nationwide. 6-10-05

FORMER JUDGE’S CHILD-PORN TRIAL SET
More than two years after being arrested for possessing child pornography and resigning from the bench, former Camden County Judge Stephen W. Thompson is scheduled to go on trial July 25 in U.S. District Court in Camden. Ironically, if convicted, the man who was his vicinage’s point man for Megan’s Law cases would be required to register as a sex offender under that law. Thompson, who has been free on $2 million bail since surrendering to federal authorities in 2003, also faces up to 25 years in prison and $500,000 in fines on charges of violating two federal statutes by possessing child pornography and traveling to Russia to have sex with a teen-ager and videotaping it. 6-10-05

LAWYERS BEMOAN THE CSI EFFECT
For years parents have worried about television’s effect on children, and now attorneys are fretting about its effect on jurors. Shows that dramatize how high technology solves crimes, most notably CSI: Crime Scene Investigation, often exaggerate what police can do and create distorted expectations that viewers take with them to jury duty. “I’ve been taking time, usually in the opening statements, to tell them what they see on television is not what the justice system is all about,” said John C. Eastlack Jr. of Woodbury’s Holston MacDonald Uzdavinis Eastlack & Ziegler, chairman of the New Jersey State Bar Association’s Criminal Law Section. The so-called CSI effect is expected to grow. For a full story, see the June 13 New Jersey Lawyer. 6-10-05

NEW PRESIDING JUDGE FOR CAMDEN COUNTY MUNICIPAL COURTS
Robert T. Zane III, a Cherry Hill sole practitioner, was named presiding judge of municipal courts in Camden County by Chief Justice Deborah T. Poritz. He replaces John McFeeley III of Westmont. Zane has been municipal judge in Collingswood since 1993 and also in Haddon Heights this year. 6-10-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, JUNE 10, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JUNE 10, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, JUNE 13, 2005.


APPROVED FOR PUBLICATION
WORKERS’ COMPENSATION
GROSS v. BOROUGH OF NEPTUNE CITY
Appellate Division, A-6515-03T5, approved for publication June 10, 2005. (7 pages). Facts-on-Call Order No. 92503

In a workers’ compensation case, unless there is special justification, an employer cannot avoid its obligation under N.J.A.C. 12:235-3.9(a) to disclose before trial its intent to offer at trial surveillance videotapes of the employee by delaying surveillance until after the beginning of the trial and then offering the videotapes just before its last medical expert testifies.

NOT APPROVED FOR PUBLICATION
NEGLIGENCE
LEONARD v. ENNIS
Appellate Division, A-5203-03T5, June 10, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18085

Judgment for the plaintiff in an automobile negligence action after a jury verdict of $250,000 in his favor and denial of the defendants’ motion for a new trial or for remittitur affirmed; the plaintiff was injured when his vehicle was rear-ended by a van driven by the defendant in the course of his employment with the defendant company; contrary to the defendants’ appellate arguments, (1) they were not entitled to a new trial because the trial court did not commit reversible error by failing to specifically instruct the jury not to consider the plaintiff’s lost wages and (2) they were not entitled to remittitur because the trial court correctly refused to interfere with the amount of the jury award after concluding that it was not “shocking, excessive or manifestly unjust.”

REAL PROPERTY
APARIN v. PLUMSTED TOWNSHIP LAND USE BOARD
Appellate Division, A-5780-03T5, June 10, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18087

Summary judgment in an easement case for the defendant Land Use Board and the defendant buyers and sellers of a lot that did not abut an improved road affirmed; the Board determined that an easement shown on a 1989 filed subdivision map provided access to the lot, and it granted the buyers’ application for a variance to build a house on the lot; the plaintiff neighbors challenged both the variance and the access determination, but they withdrew their challenge to the variance after the trial court determined in a bifurcated proceeding that the easement provided access to the lot; summary judgment was not precluded because the trial court properly concluded that the filed map created the easement for the lot, because the plaintiffs had notice of the easement through their deed, and because the filed map was not ambiguous.

DOMESTIC VIOLENCE
GARCIA v. GARCIA
Appellate Division, A-6647-03T2, June 10, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18086

Denial of the defendant ex-husband’s motion to vacate a final domestic violence restraining order that was entered against him reversed and remanded for a plenary hearing; the FRO was entered in 1994 based on allegations that the defendant had threatened the plaintiff ex-wife or her brother; the trial court applied the Carfagno factors and denied the defendant’s motion based on the parties’ conflicting certifications; a plenary hearing was required because there was an insufficient basis in the record to apply the Carfagno factors where the certifications, the transcript of the 1994 hearing, and the history of the plaintiff’s dismissed contempt complaints since the FRO was entered raised “substantial questions of credibility” about her opposition to the defendant’s motion.

DRUNK DRIVING
STATE v. EPPS
Appellate Division, A-1241-04T1, June 10, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18084

Conviction of driving while under the influence affirmed; after the defendant motorcyclist exited a bar where he had been drinking, he got into a verbal dispute with a truck driver who apparently had hit the motorcycle; the defendant was partially mounted on the motorcycle with his helmet on and the engine running when a police officer arrived on the scene; the officer stopped him from further mounting the motorcycle based on a suspicion that the defendant was under the influence of an intoxicating substance; the evidence that the defendant was in control of the motorcycle and that he intended to operate it was sufficient to establish operation under N.J.S.A. 39:4-50.

DAMAGES
JACKSON v. BRISTOL MANOR NURSING HOME
Appellate Division, A-6867-03T5, June 9, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18083

Post-judgment order granting remittitur in a slip-and-fall action reversed and remanded for a new trial; a jury awarded the plaintiff $755,865 on March 3, 2004, the defendants’ motion for a new trial or remittitur was filed with the court on March 23, and the plaintiff’s attorney received the motion papers on March 24; the trial court reduced the award to $400,000; there was no basis to disagree with the trial court’s findings that “most definitely” some liability had to be ascribed to the plaintiff and that there was a “miscarriage of justice,” but a new trial was the proper remedy in those circumstances; contrary to the plaintiff’s argument that the defendants’ motion was not timely filed, the interests of justice required that the defendants’ motion be heard on the merits because there was substantial compliance with Rule 4:49-1(b) and its 20-day deadline for filing a motion for a new trial after a jury verdict.

CIVIL PROCEDURE
COLONY REALTY, LLC v. BOROUGH OF RED BANK
Appellate Division, A-477-04T2, June 9, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18077

Summary judgment dismissing the plaintiff property owner’s action in lieu of prerogative writs because the plaintiff failed to file its action within 45 days of publication of the defendant Planning Board’s resolution affirmed; the resolution granted major site plan approval with variances and waivers to the defendant developer; the notice was published on June 22, 2002, construction began on September 3, 2003, and the plaintiff filed its action on November 26, 2003; even though it had both active and constructive knowledge of the site plan approval, the plaintiff did not act within the 45-day time period required by Rule 4:69-6; contrary to the plaintiff’s arguments on appeal, the 45-day time period (1) should not have been relaxed under Rule 4:69-6(c) and (2) applied even if the Planning Board’s action was ultra vires.

LAND USE
KERANI ENTERPRISE, INC. v. PLAINSBORO TOWNSHIP PLANNING BOARD
Appellate Division, A-5752-03T2, June 9, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18081

Order upholding the defendant Planning Board’s denial of the plaintiff’s application for a bulk variance and a hardship exception to N.J.S.A. 40:55D-35 affirmed; the plaintiff owned two lots that had to be treated as a single lot for land use purposes under the terms of a prior minor subdivision approval; the larger of the lots had a house on it, and the plaintiff sought to build a house on the smaller lot; rejection of the application was proper (1) where the plaintiff knew at the time it bought the lots that, for land use purposes, it was acquiring a single lot, (2) where the second lot lacked street frontage and the proposed house would be landlocked in violation of §40:55D-35 and the local ordinance, and (3) where the plaintiff’s desire to build a second house instead of demolishing the existing house and building a larger one did not constitute a hardship.

REAL PROPERTY
WALLACE v. MERCHIA
Appellate Division, A-3744-03T1, June 9, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18082

Deficiency judgment of $88,814.07 entered against the defendant mortgagors vacated and remanded; the deficiency judgment reflected a $218,814.07 default judgment that had been entered against the defendants for the balance due on a mortgage note minus the $130,000 appraisal value of the mortgaged property; the trial court mistakenly exercised its discretion by denying the defendants’ request for an adjournment to obtain counsel and their own appraisal; the entry of judgment in summary proceedings was error because the record contained genuine issues of material fact, including (1) whether the plaintiffs, who were the successors to the bank that issued the mortgage, were precluded from pursuing a deficiency judgment by an agreement between the defendants and the bank and (2) the appropriate fair market value credit for the property.

HUSBAND AND WIFE
RIVERA v. RIVERA
Appellate Division, A-6570-03T2, June 9, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 18078

Portion of a post-divorce-judgment order that denied the plaintiff ex-wife’s Rule 4:50 motion to vacate the parties’ judgment of divorce affirmed, but portion of the order that vacated an earlier award of $1,650 in attorney’s fees to the plaintiff vacated; the judgment incorporated the terms of the parties’ oral settlement agreement; the denial of the plaintiff’s Rule 4:50 motion was proper because she failed to make a sufficient showing that the agreement was the product of fraud or that it was no longer fair and equitable; the trial court “took great pains” to ensure that the agreement was clear and understandable and that the plaintiff voluntarily consented to it, and the record demonstrated only the plaintiff’s “dissatisfaction” with the agreement due to the defendant ex-husband’s late and inadequate response to his obligations under the agreement; the basis for the vacation of the award of attorney’s fees was erroneous.

DRUNK DRIVING
STATE v. RUSSO
Appellate Division, A-7134-03T5, June 9, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18080

Convictions of driving while intoxicated and refusing to submit to a Breathalyzer test affirmed; at about 10 p.m., a police officer observed the defendant (1) seated behind the steering wheel of a parked van with its engine running and (2) drinking from a beer bottle; the defendant’s contentions that the State had not presented evidence that he had operated the vehicle while intoxicated and that the officer did not have probable cause to believe that the defendant was operating a vehicle were “clearly without merit,” and the Law Division’s findings and conclusions were supported by substantial credible evidence.


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