NEW JERSEY LAWYER

DAILY BRIEFING      06/14/2005


News Briefs

JUDGE TO DECIDE ON REVERSAL BASED ON DNA EVIDENCE
Whether convicted murderer Larry L. Peterson becomes the first in New Jersey to get a new trial or a reversal based on DNA evidence could be decided July 29. That’s when Burlington County Judge Thomas S. Smith Jr. has scheduled a hearing on whether to vacate the conviction based on new evidence that the DNA of another man was found under the fingernails and in the undergarments of the woman who Peterson was convicted of killing in 1989. Burlington County prosecutors, who could file for a new trial if Smith vacates, plan to test more hair found at the scene to determine whether Peterson was at the 1987 murder. Peterson, who has served 18 years in prison, has been fighting for DNA testing long before the state courts began accepting it in 2003. His attorney, Vanessa Potkin from the Benjamin N. Cardozo School of Law in New York, filed the motion to overturn his conviction. 6-13-05

$46.7 MILLION JURY AWARD TO BE CHALLENGED
Troy Chemical Corp. of Newark plans to file for a new trial after a Middlesex County jury’s award of $46.7 million to a mechanic exposed to pesticides from a forklift truck used by Troy. The award, which included $45 million for pain and suffering, was granted to Karl Webb, 53, for nerve, heart and gastro-intestinal damage caused by pesticides Troy Chemical had left on the truck after renting it in 2000 from Webb’s former employer, Mid-Hudson Forklift Corp. in Edison. Mitchell J. Makowicz Jr. of Chatham’s Blume Goldfaden Berkowitz Donnelley Fried & Forte represented Webb during the four-day trial before Judge Jamie D. Happas. The defense attorney was John S. Sawicki of Secaucus. 6-13-05

LAWYERS EYED FOR TOP MONMOUTH DEM SPOT
It’s strictly in the rumor stage, but the buzz is that Monmouth County Democratic Chairman Victor Scudiery may be on the way out and among those prominently being mentioned as his replacement is Red Bank attorney Dennis A. Drazin. For several years Drazin has been a key cog in the political action committee of the Association of Trial Lawyers of America-New Jersey. Other attorneys getting name drops to succeed Scudiery are Michael DuPont of Red Bank, Jerold L. Zaro of Ocean and former Morris County Prosecutor W. Michael Murphy of Newark. Scudiery is said to have angered party leaders when he spoke publicly against the imminent appointment of assistant U.S. Attorney Luis A. Valentin as Monmouth County prosecutor. 6-13-05

THREE NJ METRO AREAS AMONG THE TOP 100 FOR BUSINESS
Mercer County is the best place in New Jersey to start a business or career and the 21st best nationwide, according to Forbes magazine’s annual ranking that compares 150 metro areas based on cost of doing business, job growth and residents’ level of education. The only other Jersey areas in the Top 100 are Middlesex County at 52 and Newark at 69. That big neighbor to the north, New York City, ranked 120th mainly because it was rated the most expensive of all 150 regions, while Philadelphia ranked 60th overall. 6-13-05

SIT BACK, RELAX AND CONJURE UP THIS MORNING’S COMMUTE
Not so relaxing? Maybe it’s because New Jersey boasts the nation’s third-longest commute, with each one-way trek averaging 28.5 minutes — just behind New York’s 30.4 minutes and Maryland’s 30.2 minutes. And that Garden State commute is more than four minutes longer than the national average, according to U.S. Census figures. Martin E. Robins of Rutgers’ Alan M. Voorhees Transportation Center thinks creating future jobs in locales easily reached by mass transit like Newark, Jersey City, New Brunswick and Secaucus can help avoid statewide gridlock. He also endorses “transit villages,” which include revitalizing neighborhoods accessible by bus, rail and ferry. Meanwhile, current proposals to increase rail ridership include adding a third rail tunnel under the Hudson River and creating a line to serve Monmouth, Ocean and Middlesex counties. And this summer, double-decker buses join NJ Transit’s fleet of railcars. 6-13-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, JUNE 13, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, JUNE 13, 2005.

THE SUPREME COURT has announced that it will release opinions in SERRANO v. SERRANO, A-99, and DiPROSPERO v. PENN, A-66, on June 14, 2005. The issue on appeal in Serrano addresses whether the proofs presented by the plaintiff in opposition to the defendant’s motion for summary judgment satisfied the verbal threshold standard of the Automobile Insurance Cost Reduction Act of 1998. The issue on appeal in DiProspero addresses whether, to satisfy the verbal threshold under the Automobile Insurance Cost Reduction Act of 1998, a person is required to show that the permanent injury suffered had a “serious impact” on his life.

OPINION UPDATE: The New Jersey Supreme Court has withdrawn its opinion in Skeete v. Dorvius dated June 6, 2005 and has refiled its opinion on June 10, 2005. The June 6 opinion was digested in New Jersey Lawyer on June 13, 2005 at page 22 [14 NJL 1158]. The June 10 opinion provides that Justices Zazzali, Albin, and Wallace joined in Justice Long’s majority opinion, that Justice Zazzali joined in Justice Albin’s concurrence, and that Chief Justice Poritz and Justice Rivera-Soto joined in Justice LaVecchia’s dissent. To order the full text of the June 10 opinion, refer to Facts-on-Call Order Number 92491.



APPROVED FOR PUBLICATION
PROFESSIONAL MALPRACTICE
MURPHY v. NEW ROAD CONSTRUCTION
Appellate Division, A-5303-02T5, approved for publication June 13, 2005. (8 pages). Facts-on-Call Order No. 92504

The Affidavit of Merit Statute does not apply to a claim against a covered person or entity based on conduct outside the scope of the licensed activity.

RIGHT TO COUNSEL
STATE v. ROPER
Appellate Division, A-4000-03T4, approved for publication June 13, 2005. (3 pages). Facts-on-Call Order No. 92505

On remand for the trial court to address the merits of the defendant’s claim that trial counsel had rendered ineffective assistance by failing to file a motion to suppress evidence, (1) the trial court properly found that probable cause existed for the search and (2) assuming that counsel’s failure to file the motion met the first prong under Strickland v. Washington, there would a failure to meet the second prong because the motion would have been unsuccessful.

NOT APPROVED FOR PUBLICATION
NEGLIGENCE
BONATH v. GIGLIO
Appellate Division, A-4476-03T1, June 13, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18092

Summary judgment for the defendant New Jersey Transit, the defendant train conductor, and the defendant train engineer affirmed in an action for injuries sustained by the plaintiff when the train in which she was a passenger collided with a vehicle that got stuck on the train track; the plaintiff sustained a mild disc bulge and a tarlov cyst at L1-S1, and she suffered from chronic headaches, dizziness, and lightheadedness; the trial court properly concluded that, without expert testimony or evidence of “manifest inattention or recklessness,” the plaintiff could not demonstrate that a duty had been breached; also, the plaintiff did not meet the threshold to collect damages for pain and suffering under N.J.S.A. 59:9-2(d).

PERSONAL INJURY
BYRUM v. NEW JERSEY MANUFACTURERS INSURANCE CO.
Appellate Division, A-2455-03T1, June 13, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18090

Orders dismissing the personal-injury plaintiff’s negligence claim against the defendant insurer affirmed; after being injured in a car accident, the plaintiff learned that the used car she had purchased a week earlier had been declared a total loss after being involved in a prior accident; the plaintiff alleged that the defendant insurer of the prior owner was responsible for her injuries because it neither obtained a salvage title pursuant to the Salvage Certificate of Title Act nor confirmed that its insured had obtained a salvage title; contrary to the plaintiff’s arguments on appeal, (1) the trial court correctly concluded that the defendant had no duty to obtain a salvage title and (2) the trial court properly rejected the plaintiff’s contention that the defendant had “manipulated” the total loss claim to avoid compliance with the Act.

PARENT AND CHILD
GROSS v. GROSS
Appellate Division, A-6435-03T5, June 13, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18091

Orders requiring the defendant ex-husband to continue contributing to the college expenses of his son and to pay the attorney’s fees of the plaintiff ex-wife affirmed; the couple’s divorce judgment called for the defendant to contribute to the college expenses of their daughter and son; the plaintiff moved to compel the defendant to pay, among other things, his two-thirds share of college expenses for the son, and the defendant cross-moved to have the son emancipated or to have the obligation modified; the Family Part did not abuse its discretion (1) by giving additional time to the son to complete his degree, even though he is “taking more time than previously anticipated” to do so, and (2) by awarding attorney’s fees to the plaintiff, who brought the motion “at least in part” because the defendant withheld payment for his son’s college expenses contrary to a prior court order; the record did not indicate that the defendant lacked the ability to pay.

LAND USE
RIAD DEVELOPMENT CO., LLC v. TOWNSHIP OF MOUNT OLIVE PLANNING BOARD
Appellate Division, A-2067-03T1, June 13 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18093

Law Division’s final judgment in an action in lieu of prerogative writs affirming the defendant Planning Board’s approval of the defendant supermarket’s site plan application affirmed; as to whether the paving issue should have been remanded to the Board for reconsideration, (1) the Law Division may modify the site plan approval in accordance with the local ordinance, (2) there would be no benefit to a hearing on the issue, and (3) a remand would have only further delayed the application; as to the denial of the defendants’ motion for attorney’s fees, although the plaintiff was a competitor of the defendant supermarket, there was nothing in the record that suggested that the plaintiff had acted frivolously or in bad faith in pursuing its objections in the Board proceedings and in the action in lieu of prerogative writs.

PUBLIC EMPLOYEES
LEWIS v. BOARD OF TRUSTEES OF THE POLICE AND FIREMEN’S RETIREMENT SYSTEM
Appellate Division, A-2916-03T5, June 10, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18088

Final decision of the Board of Trustees of the Police and Firemen’s Retirement System that denied the petitioner retiree’s request to accept an appointment as the county undersheriff without re-enrolling in PFRS reversed; the petitioner was enrolled in PFRS from 1982 until he retired in 2003; when the petitioner was appointed as undersheriff in 1995, he elected to continue to participate in PFRS under N.J.S.A. 43:16A-3.5, even though an undersheriff usually participates in the Public Employees’ Retirement System; PFRS argued on appeal that the petitioner’s election in 1995 required him to remain in PFRS or to re-enroll upon a subsequent employment as undersheriff, but the Appellate Division was persuaded by the petitioner’s argument that his break from service in a PFRS-eligible position, which exceeded six months, meant under N.J.S.A. 43:16A-3.1 that his appointment as undersheriff should be treated as a separate and independent appointment rather than as an appointment to a PFRS-eligible position.


To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


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