NEW JERSEY LAWYER

DAILY BRIEFING      06/16/2005


News Briefs

RULING GOES AGAINST LAWYERS IN MED-MAL FEE BATTLE
Union County Judge Thomas N. Lyons Wednesday rejected the New Jersey State Bar Association’s constitutional challenge to the $75 annual fee being assessed lawyers for a fund subsidizing medical malpractice insurance premiums for doctors in high-risk practices. Lyons found no merit in the State Bar’s argument that relatively few attorneys who practice in New Jersey are involved in such suits. There was no immediate word whether the state’s largest lawyer organization intends to appeal. 6-15-05

FORMER JUDGE BLAMES ADLER FOR RENOMINATION DENIAL
Going public with what some suspected and others have vigorously denied, former Cumberland County Judge Diane B. Cohen has blamed her failure to be reappointed on a personal feud with state Sen. John H. Adler (D-Camden) that began when the two practiced at the same law firm. Cohen effectively was bounced from the bench this month when the Senate Judiciary Committee, chaired by Adler, refused to take up her nomination for reappointment. In an interview with the Courier Post of Cherry Hill, she said Adler privately convinced committee members to block the nomination because of that prior feud. “I think he used the political process to play out his personal vendettas against me,” she told the paper, “and I believe he abused his power. He tried not to have his fingerprints on it, but I know.” Other senators dispute that Adler masterminded her ouster. Adler had no immediate comment for the Camden County paper. Cohen, 66, needed four more years on the bench to qualify for a 75 percent pension. 6-15-05

NURSING HOME SEX-ASSAULT CASE SETTLES
One of Mercer County’s more unusual civil cases has concluded as Sidney Kinch of Philadelphia, who was accused of sexually molesting a semi-comatose woman at a Trenton nursing home, has agreed to settle with the woman’s family. Kinch and co-defendants, which included the Millhouse Nursing Home, agreed to pay a total $1 million in the settlement approved by Mercer County Judge Andrew J. Smithson. Kinch, who allegedly assaulted the woman while visiting his wife at the nursing home, was found not guilty of criminal charges by reason of insanity caused in part by a brain injury sustained while serving in the Vietnam war. Craig J. Hubert of Szaferman Lakind Blumstein Blader Lehmann & Goldshore in Lawrenceville represented the plaintiffs, and David R. Forrey of the firm of Francis J. Brennan III in Cranbury represented Kinch. 6-15-05

NJ EMPLOYMENT PICTURE STILL BRIGHTER THAN NATION’S
New Jersey’s unemployment rate continues to be better than the national rate, dropping to 3.9 percent in May from 4.2 percent in April. The U.S. rate fell, too, but only to 5.1 percent. Some may consider New Jersey at full employment as economists say 4 percent of the workforce usually is temporarily unemployed during brief transitions to new jobs. 6-15-05

BANKRUPTCY CASE FILINGS DECLINE
The number of bankruptcy cases filed in federal courts fell 3.9 percent for the 12 months ending March 31, according to statistics released by the Administrative Office of the U.S. Courts. Still, total filings remain above the 1.5 million mark first broken three years ago. Leading the latest decline were business filings, down 13.1 percent; personal filings decreased 3.6 percent. 6-15-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, JUNE 15, 2005:
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, JUNE 15, 2005:

PUBLIC MEETINGS
TIMES OF TRENTON PUBLISHING CORP. v. LAFAYETTE YARD COMMUNITY DEVELOPMENT CORP.
New Jersey Supreme Court, A-22, June 15, 2005. (27 pages). Facts-on-Call Order No. 92514

The defendant development corporation is subject to both the Open Public Meetings Act and the Open Public Records Act because it is both a public body that performs a governmental function within the meaning of OPMA and an instrumentality or agency created by a political subdivision under OPRA.

IN RE CIVIL COMMITMENT OF E.D.
New Jersey Supreme Court, A-62, June 15, 2005. (23 pages). Facts-on-Call Order No. 92515

Due process requires that the State give a committee under the Sexually Violent Predator Act written notice of each asserted violation of a conditional discharge and that, before a recommitment under the SVPA, the State prove by clear and convincing evidence that the person is highly likely to reoffend.


APPROVED FOR PUBLICATION
REAL PROPERTY
PANETTA v. EQUITY ONE, INC.
Appellate Division, A-6813-03T3, approved for publication June 15, 2005. (34 pages). Facts-on-Call Order No. 92516

Because N.J.S.A. 46:3-16 requires that deeds be construed as including all appurtenant property rights appended to the property conveyed unless expressly excluded, the deed in this case, which expressly mentioned the tax map designation of upland property but made no mention of the separate tax map designation or other description of an appended riparian grant, nonetheless included the riparian grant in the conveyance.

CONSUMER PROTECTION
PSENSKY v. AMERICAN HONDA FINANCE CORP.
Appellate Division, A-2166-04T5F, approved for publication June 15, 2005. (17 pages). Facts-on-Call Order No. 92517

Compliance with the Truth In Lending Act by a car dealer’s assignee of an automobile loan is a complete defense to state law claims, such as consumer fraud, that are asserted against the assignee and that are factually based on TILA disclosure requirements, even in the absence of a specific TILA claim in the plaintiff consumer’s complaint. To the extent that the Law Division decision in Scott v. Mayflower Home Improvement Corp. can be read to the contrary, it is reversed.

TRIAL BY JURY
STATE v. DWIGHT
Appellate Division, A-247-03T2, approved for publication June 15, 2005. (11 pages). Facts-on-Call Order No. 92518

A defendant who is tried in absentia after having received a valid Hudson notice may be retried following a mistrial due to a hung jury even though notice of the date of the retrial, which was given to defense counsel, could not be given to the defendant personally due to his continued voluntary absence. Under these circumstances, the defendant will be deemed to have waived his right to be present at the retrial.

NOT APPROVED FOR PUBLICATION
EMPLOYMENT LAW
MAIMONE v. CITY OF ATLANTIC CITY
Appellate Division, A-2454-03T2, June 15, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18102

Summary judgment for the defendant police department, the defendant municipality, and the defendant police chief in an action under the Conscientious Employee Protection Act reversed; the plaintiff police officer alleged that he was transferred because he had complained to his superiors that the defendants had decided not to pursue the investigation and prosecution of those who were involved in the promotion of prostitution and the unlawful operation of sexually oriented businesses that were near places of worship or schools; the trial court mistakenly held that the plaintiff had not com-plained of the defendants’ violation of a law, rule, regulation, or “clear mandate of public policy” that had a nexus to the change in his employment status.

CHARITABLE IMMUNITY
LIND v. INSERRA SUPERMARKETS, INC.
Appellate Division, A-6331-03T5, June 15, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18101

Dismissal of the plaintiff’s premises liability complaint following the jury’s verdict of no cause of action and denial of the plaintiff’s motion for a new trial affirmed; the plaintiff slipped and fell near the cereal aisle and the meat display counter at the defendant supermarket, and another customer testified that he noticed a clear plastic bag under the plaintiff’s sneaker after the accident but that he did not recall if there were any logos on the bag; contrary to the plaintiff’s assertion, (1) the jury instruction on the mode-of-operation rule was not defective and (2) the trial court did not err by denying his motion for a new trial because there was an issue of fact as to the source of the plastic bag and the trial court therefore did not err by instructing the jury on both the mode-of operation rule and on actual or constructive notice.

CHARITABLE IMMUNITY
MOSES v. CENTRAL NEW JERSEY JEWISH HOME FOR THE AGED
Appellate Division, A-1251-04T2, June 15, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18099

Orders granting summary judgment to the defendant nursing home on the basis of the charitable immunity statute, denying the injured plaintiff’s motion to amend her complaint to add a nursing home employee as a defendant, and denying her motion for reconsideration affirmed; while visiting her husband at the nursing home, the plaintiff tripped over the feet of an employee and fell; contrary to the plaintiff’s arguments on appeal, (1) the trial court properly granted summary judgment to the nursing home because the plaintiff did not confer a benefit to the nursing home by being present there and instead the nursing home conferred a benefit to her by taking care of her husband and (2) even if the issue of adding an employee as a defendant was not rendered moot, the trial court’s orders would be affirmed because the plaintiff failed to attach the proposed amended complaint to her motion and because immunity extends to the actions of agents or servants of a charitable entity.

TAXATION
CITY OF TRENTON v. 392 BRUNSWICK AVENUE
Appellate Division, A-1149-04T2, June 15, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18100

Denial of a tax sale certificate assignee’s motion to vacate an in rem tax foreclosure judgment entered for the plaintiff City affirmed; when the assignee acquired the tax sale certificate, it knew that the City had filed a foreclosure complaint, but the assignee did not ascertain the status of the in rem proceeding; when the assignee sought to redeem the certificate one day after a final judgment of foreclosure was entered, the tax collector refused to accept payment; the trial court properly denied the assignee’s motion in a “well-reasoned” decision; the assignee presented “no excusable neglect” and had no particular interest in the subject property to trigger application of Rule 4:50-1(f) for reopening the foreclosure judgment; there was no “previous conduct” by the City that led the assignee to “some prejudicial action” which estopped the City from relying on the foreclosure judgment.


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