NEW JERSEY LAWYER

DAILY BRIEFING      06/21/2005


News Briefs

$600,000 TO ESTATE OF GIRL KILLED BY TREE BRANCH AT SCHOOL
The estate of Greta Schoenemann, who was killed at age 14 in 2002 by a tree branch that fell during a windstorm while she was on the grounds of Westfield High School, has accepted a $500,000 settlement from the Westfield Board of Education and $100,000 from the board’s tree service company. Plaintiffs’ attorney William A. Krais of Porzio, Bromberg & Newman in Morristown argued the school board negligently allowed students to go outside for lunch despite a high-wind weather advisory and gusts of 50 miles per hour, and that the tree company did not adequately inspect the tree from which the 1,000-pound branch fell. The teen-ager died four days later. Defense attorneys in Schoenemann v. Westfield School District Board of Education were George C. Roselle III of Lamb, Kretzer, Reinman & Roselle of Jersey City for the school board and Judy L. Creeman of the Law Offices of Joseph Carolan in Parsippany for M&A Tree Service. 6-20-05

SERVICES WEDNESDAY FOR HENRY A. HILL JR.
Services will be held Wednesday for Henry A. Hill Jr., the Hill Wallack founding partner and land use law pioneer who devised the exclusionary zoning strategy for the Mount Laurel cases. Following 6 p.m. funeral services at Mather Hodge Funeral Home in Princeton, friends and family are invited to a celebration of life service at Hill Wallack’s offices in Carnegie Center in West Windsor. Burial will be private. Hill, 65, died Friday. 6-20-05

CLASS ACTION GRANTED IN SUIT AGAINST PROPANE DELIVERY COMPANY
A group of Newton residents has won class-action status against a propane delivery company whose depot exploded and disrupted the community in 2003. Union County Judge Karen D. Russell rejected defendant Able Energy’s argument that the plaintiffs’ attorneys, Paul G. Hunczak and Stephen A. Snyder of Morris Downing & Sherred in Newton, had not adequately demonstrated the class size. The suit alleges the explosion, which forced the evacuation of hundreds of homes, was caused by Able’s illegal transfer of propane from one truck to another. Able paid fines, but neither denied nor admitted liability in settling a lawsuit with the state. 6-20-05

CUMBERLAND’S JUDICIAL MUSICAL CHAIRS COMES TO AN END
The retirement of two judges within one month has created a bench version of musical chairs that’s finally being resolved in Vicinage 15 covering Cumberland, Gloucester and Salem counties. Newly appointed Judge Colleen A. Maier will be assigned officially to Cumberland County June 29 to pick up some of the slack created by the June 13 departure of Family Part Presiding Judge Diane B. Cohen, while Judge Julio L. Mendez has been named acting family presiding judge. Judge Georgia M. Curio became assignment judge following the retirement of Judge George H. Stanger in May. Judge Michael Brooke Fisher has been transferred from criminal to civil to cover Curio’s work there. Cohen’s nomination for another term on the bench was killed in the state Senate. 6-20-05.

ANOTHER DEPARTURE FROM MORRIS COUNTY PROSECUTOR’S OFFICE
Patrick M. Minutillo has resigned as director of administration and policy at the Morris County Prosecutor’s Office, the fourth resignation there in recent months. Minutillo was one of the first administrators hired when County Prosecutor Michael M. Rubbinaccio began his five-year term in December 2001. Others who recently left were Assistant Prosecutors Charles M. O’Connell, Gerard J. Britton and Deborah D. Factor. 6-20-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, JUNE 20, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, JUNE 20, 2005:

SEARCH AND SEIZURE
STATE v. McALLISTER
New Jersey Supreme Court, A-87, June 20, 2005. (44 pages). Facts-on-Call Order No. 92527

Although citizens have a reasonable expectation of privacy in bank records under the New Jersey Constitution, existing grand jury subpoena procedures sufficiently protect that expectation, and neither a probable cause standard for grand jury subpoenas nor notice to account holders is constitutionally required. The Criminal Practice Committee is directed to recommend whether the Supreme Court should consider additional safeguards for account holders. Justice Wallace concurred.

THE SUPREME COURT has announced that it will release an opinion in STATE v. W.A., A-68, on June 21, 2005. The issue on appeal in W.A. addresses whether the trial court’s blanket prohibition against the defendant being present at a sidebar conference violated his rights under the Confrontation Clause of the Sixth Amendment.



APPROVED FOR PUBLICATION
CIVIL PROCEDURE
FARRELL v. TCI OF NORTHERN NEW JERSEY
Appellate Division, A-4029-03T2, approved for publication June 20, 2005. (19 pages). Facts-on-Call Order No. 92528

Implicit in the time requirements of Rule 4:50-2 is that relief from a judgment or order under Rule 4:50-1 must be sought within a reasonable time and that relief under Rule 4:50-1(a), (b), or (c) must be sought not more than one year after the judgment or order both was entered and was served on the party that was adversely affected by the order pursuant to Rule 1:5-1 or after the adversely affected party had actual knowledge of the order.

BAIL
STATE v. RAMIREZ
Appellate Division, A-3786-03T1, A-3789-03T1, and A-3790-03T1, approved for publication June 20, 2005. (23 pages). Facts-on-Call Order No. 92529

On its appeal from orders that remitted only a portion of forfeited bail, the corporate surety that posted the bail failed to meet its burden of establishing that it had made reasonable efforts to locate and effect the capture of the fugitive defendants and that it had adequately supervised the defendants while they were released on bail. On its appeal from an order that denied any remission of forfeited bail, the surety failed to prove by competent evidence that the defendant was no longer a fugitive.

NOT APPROVED FOR PUBLICATION
MEDICAL MALPRACTICE
COLE v. ATLANTIC HEALTH SYSTEMS, INC.
Appellate Division, A-6320-03T2, June 20, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18123

Order that dismissed with prejudice the plaintiff’s medical malpractice complaint for failure to provide an expert report and that denied her motion to extend discovery affirmed; the plaintiff claimed that exceptional circumstances warranted an extension because the doctor who supplied her affidavit of merit withdrew for health reasons and because her attempts to secure another expert had not yet succeeded; the trial court did not abuse its discretion (1) where the date scheduled for the doctor to examine the plaintiff was more than 90 days after her complaint was dismissed without prejudice for failure to provide discovery and was about three and a half years after the alleged malpractice, 18 months after the complaint was filed, and 13 months after the affidavit of merit was filed and (2) where the plaintiff gave no persuasive reason for her failure to provide an expert report before the doctor’s withdrawal or her failure to retain a substitute expert sooner.

PROFESSIONAL MALPRACTICE
GIBBS v. FADER
Appellate Division, A-6051-03T2, June 20, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 18122

Judgment for the defendant treating dentist and the defendant oral surgeons in a dental malpractice case affirmed; after the jury gave a negative answer to special interrogatory #1, which related to the alleged negligence of the dentist, the trial court entered a judgment for all of the defendants; contrary to the plaintiffs’ assertion, there was no reversible error where the trial court did not require the jury to answer additional special interrogatories that related to the alleged negligence of the oral surgeons; the jury “clearly understood the stakes presented,” rejected the plaintiffs’ theory of a continuing mistreated infection, and accepted the defense’s theory of an “unfortunate outcome” that was “a faultless by-product of the extraction surgery”; there was a “robust and honest contest” on the crucial issue, which was infection versus nerve damage, and the issue was resolved by the jury’s unanimous finding on special interrogatory #1.

PUBLIC EMPLOYEES
IN RE TRUEX
Appellate Division, A-3720-03T1, June 20, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18118

Merit System Board decision affirming a municipality’s discharge of the appellant police officer from employment affirmed; the charges leading to the discharge stemmed from the killing of a pedestrian by a vehicle driven by the appellant while on duty and the officer’s subsequent attempts to conceal from investigators whether he had consumed alcohol on the day of the accident; contrary to the appellant’s arguments, there was “nothing remotely arbitrary, capricious or unreasonable” in the Board’s determinations (1) that a police officer who fails to cooperate fully with the immediate investigation of a fatal accident defaults on a basic duty of his office, (2) that “telling a lie” during the extended investigation is a “fundamental dereliction” of the police officer’s duty, and (3) that the appellant’s failure to report to work on the first day after an extended leave of absence following the accident constituted an unauthorized absence because he did not follow established procedures.

PUBLIC EMPLOYMENT
FRATERNAL ORDER OF POLICE, GARDEN STATE LODGE NO. 3 v. TOWNSHIP OF PENNSAUKEN
Appellate Division, A-5034-03T3, June 20, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18120

Order granting summary judgment to the plaintiff police collective bargaining agent, confirming an arbitrator’s award to the plaintiff, denying the defendant Township’s cross-motion for summary judgment, and dismissing the Township’s counterclaim that sought to vacate the award affirmed; the arbitrator found that the Township had violated the collective bargaining agreement by requiring Medicare-eligible retirees to enroll in Medicare Part B as a condition to receiving the same health insurance coverage afforded to active police officers; the arbitrator concluded that the Township was contractually obligated to reimburse the retirees for the premium paid for Part B coverage; contrary to the Township’s arguments on appeal, the arbitrator acted within the scope of her authority, her decision was “reasonably debatable,” and she acted in accordance with the principle that an arbitrator may “fill in the gaps of an agreement” by imposing a remedy that requires a party to pay for obligations even if the agreement did not specifically provide for this.

HUSBAND AND WIFE
MASTORIO v. MASTORIO
Appellate Division, A-12-04T1, June 20, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18121

Denial of the plaintiff ex-husband’s post-divorce-judgment motion to eliminate his alimony obligation affirmed; the Family Part properly concluded that insufficient time had passed since entry of a consent order modifying alimony and that the plaintiff’s voluntary and intentional acts in delaying his pension election until immediately after the consent order was entered was not a valid change in circumstances; the timing of the pension election was “an attempt to ‘create’ another change in circumstances,” and nothing “new or unforeseen” had occurred after the entry of the consent order that could legitimately support an assertion that there was a change in circumstances.

DRUNK DRIVING
STATE v. ACKEL
Appellate Division, A-4818-03T5, June 20, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18119

Convictions of driving while intoxicated, careless driving, and failure to wear a seatbelt affirmed; a police officer responded to the scene of a one-car crash that occurred at about 12:30 a.m. and observed the defendant lying on his right side with his buttocks in the driver’s seat, with his feet on the floor of the driver’s side of the car, and with his head pressing against the passenger-side door so that his chin touched his chest; after hearing testimony from the owner of the property where the crash occurred, from the treating physician, and from the officer, the Municipal Court found that the officer’s testimony was credible and that the State had proved beyond a reasonable doubt that the defendant had operated the car at the time of the crash; on de novo review of the Municipal Court record, the Law Division found the defendant guilty; the Law Division’s findings were supported by sufficient credible evidence.

PUBLIC EMPLOYEES
BROYLES v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES’ RETIREMENT SYSTEM
Appellate Division, A-5321-03T2, June 17, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18117

Final decision of the Board of Trustees of the Public Employees’ Retirement System that denied the petitioner housing field representative’s application for accidental disability retirement benefits because her injury was not caused by a traumatic event reversed; the petitioner “darted forward” to avoid an oncoming car as she returned from a work-related errand, and she fell when her shoe got caught in a metal grate in the street; the Board’s decision was arbitrary, capricious, and unreasonable because it misconstrued the applicable legal standard; there were only “insignificant” factual distinctions between this case and two cases that adhere to Kane v. Police and Firemen’s Retirement Sys. and that awarded accidental disability retirement benefits for injuries incurred while avoiding oncoming vehicles.

DOMESTIC VIOLENCE
WITTER v. MAKSUTA
Appellate Division, A-354-04T3, June 17, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18116

Final domestic violence restraining order that prohibited the defendant ex-boyfriend from contacting the plaintiff ex-girlfriend and her daughter and from possessing firearms affirmed; the defendant denied the plaintiff ex-girlfriend’s allegations (1) that he had “grabbed” her arm, “spun” her around, and “slammed” her against the wall and a railing after she arrived at his house while he was “entertaining another woman in his bedroom” and (2) that he later had screamed at the plaintiff and had attempted to enter her house while she was inside it by “kicking and pounding” on the locked door and by seeking access through a window; the trial court resolved the credibility issues against the defendant, and interference with the FRO was not warranted.


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