NEW JERSEY LAWYER

DAILY BRIEFING      06/27/2005


News Briefs

LAWYERS GAIN IN FIGHT AGAINST BEING LABELED LOBBYISTS
Many lawyers could be off the hook from possibly being branded lobbyists as a result of the state Election Law Enforcement Commission’s redrafting of proposed regulations for a new lobbying law. The commission unanimously directed its staff to rewrite its proposal in a manner that, according to ELEC Legal Director Nedda Massar, could create numerous exemptions to the original plan that would have designated lawyers lobbyists who had even minimal contact with state agencies and subject them to ELEC regulations. Paul P. Josephson, a partner in Princeton’s Hill Wallack who has been the New Jersey State Bar Association’s point man in fighting the original proposal, said news of the redraft is “a significant win for the Bar Association and for rank-and-file lawyers.” But, he stressed, he still has to see the final version of what ELEC develops. 6-24-05

CODEY TABS FORMER JURIST, THREE OTHERS FOR JUDGESHIPS
Marianne Espinosa Murphy, a former judge forced off the Essex County bench in 1993 whose re-nomination was previously blocked, appears headed back to a Superior Court judgeship. Acting Gov. Richard J. Codey has nominated the Democrat, now with Tompkins, McGuire, Wachenfeld & Barry in Newark. Codey also is nominating for judgeships John L. Call Jr. of Mount Holly, assistant Camden County Prosecutor Jeanne T. Covert and Siobhan A. Teare, a former Essex County assistant prosecutor who most recently was an attorney at the University of Medicine and Dentistry of New Jersey. Teare’s nomination is part of an agreement with Essex County state Sens. Sharpe James, Nia H. Gill and Ronald L. Rice that includes nominating acting Essex County Prosecutor Paula T. Dow to that position permanently. 6-24-05

LAWYERS FAVOR CORZINE IN EARLY CAMPAIGN CONTRIBUTIONS
New disclosure reports on campaign contributions to the state’s two gubernatorial candidates are to be filed Monday, but information already on the books indicates lawyers have moved quickly to get in on the ground floor as 300 have contributed to the campaign of Democrat Jon S. Corzine vs. just 22 for Republican Douglas R. Forrester. However, a total 400 lawyers contributed to the seven GOP primary candidates, and the heaviest giving will occur in the months ahead. For a full story, see the June 27 New Jersey Lawyer. 6-24-05

APPELLATE PANEL CHANGES VENUE TO MONMOUTH FOR A DAY
Freehold area residents will have an unusually convenient opportunity to see the state’s Appellate Division in action on Tuesday when the panel for the first time hears oral arguments in Monmouth County. It’s part of the division’s new policy to occasionally change venues to allow the public to see it in action. It normally hears arguments in Trenton, Hackensack, Morristown and Atlantic City. Arguments will be heard again in Freehold Aug. 9. Appellate Division Presiding Judge Edwin H. Stern said guest appearances elsewhere have been so well-received, the division will continue to occasionally hear arguments in other venues. 6-24-05

ATLANTIC COUNTY MUNICIPAL JUDGE AGREES TO CHANGE HIS WAYS
Henry G. Broome Jr., a part-time municipal judge in eight Atlantic County municipalities, is changing some of his courtroom policies under an agreement with Louis J. Belasco Jr., Atlantic County’s municipal court presiding judge. The Press of Atlantic City reports the two met in response to the newspaper’s report that Broome typically charges the highest fines allowable for convictions while many other municipal judges in the area charge the minimum and that he threatens defendants with jail if they do not immediately pay the first $100 of their fine. The most noticeable change agreed to is that Broome won’t threaten jail to those who don’t immediately pay. The paper further reports Broome, a Northfield sole practitioner, claims he never enforced his jail threats and based those comments on defendants’ ability to pay. 6-24-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, JUNE 24, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JUNE 24, 2005.

THE SUPREME COURT has announced that it will release an opinion in BANCO POPULAR NORTH AMERICA v. GANDI, A-5/6, on June 27, 2005. The issue on appeal in Banco Popular addresses whether a creditor has a cause of action against an attorney who counseled and assisted a debtor in transferring assets to the creditor’s detriment.



APPROVED FOR PUBLICATION
NEGLIGENCE
ABAD v. GAGLIARDI
Appellate Division, A-6384-03T5, approved for publication June 24, 2005. (9 pages). Facts-on-Call Order No. 92541

In a case involving a pedestrian who was struck by a car while jaywalking instead of proceeding to the crosswalk at a signal-controlled intersection, the trial judge properly instructed the jury on the applicability of N.J.S.A. 39:4-33, which concerns the obligation of pedestrians to cross in crosswalks at signal-controlled intersections.

WORKERS’ COMPENSATION
TOBIN v. ALL SHORE ALL STAR GYMNASTICS
Appellate Division, A-4025-03T3, approved for publication June 24, 2005. (12 pages). Facts-on-Call Order No. 92542

Temporary disability benefits are payable to the owner and chief gymnastics instructor of a gymnastics studio, who was paid only for her duties as an instructor, for the time period during which she resumed her duties as owner but not as instructor and was not paid.

NOT APPROVED FOR PUBLICATION
TORT CLAIMS ACT
BARNABEI v. CITY OF OCEAN CITY
Appellate Division, A-6576-03T1, June 24, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18149

Summary judgment for the defendant municipality based on the Tort Claims Act verbal threshold reversed and remanded for trial; the 68-year-old plaintiff dislocated her right shoulder and tore her rotator cuff when she tripped and fell on the municipality’s boardwalk; the Appellate Division disagreed with the motion court’s “implicit determination” that any plaintiff who sustains a rotator cuff tear and who does not present proofs that are equal with those in Kahrar v. Borough of Wallington must fail in his or her attempt to overcome the Act’s verbal threshold; it was “indisputable” that the plaintiff had sustained a “significant” rotator cuff injury, and her injury was shown without contradiction to be permanent; contrary to the motion court’s determination, (1) the plaintiff’s symptoms were not all “pain-related” and (2) pain may result in a “substantial” loss of bodily function.

TORT CLAIMS ACT
PEHAR v. OCEAN CITY BOARD OF EDUCATION
Appellate Division, A-4829-03T5, June 24, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18148

Summary judgment for the defendant Board of Education, school, and supervising teachers in this personal injury action affirmed for the reasons set forth by the motion court; the plaintiff child was hurt when she lost her grip on horizontal bars in the schoolyard and fell; contrary to the plaintiff’s arguments on appeal, (1) the undisputed facts showed that no reasonable juror could have concluded that the defendants had actual or constructive notice of the alleged dangerous condition of the horizontal bars, “much less” that the “condition existed on the day of the accident” and (2) the opinion of the plaintiff’s expert that there was inadequate supervision by the defendant teachers was “net” because it was “devoid of factual basis and/or an applicable standard of care.”

CONTRACTS
DIVISION OF THE STATE LOTTERY v. AVALLONE
Appellate Division, A-6440-03T3, June 24, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 18146

Judgment of $968,444.82 for the plaintiff supermarket employee after a bench trial in an action to recover a share of approximately $33 million in lottery winnings affirmed; the plaintiff contended that she and the 36 defendant supermarket employees were part of a pool that purchased the winning ticket; the trial court’s factual findings adequately supported its conclusion that the parties had entered into an enforceable contract that was breached when the defendants did not pay the plaintiff her share; the trial court properly found (1) that the parties had agreed that the plaintiff was not required to pay the $10 fee to enter the pool before the lottery drawing and (2) that, alternatively, the defendants purchased enough tickets to demonstrate that they intended to include the plaintiff in the pool.

PUBLIC EMPLOYEES
SALEEM v. MERIT SYSTEM BOARD
Appellate Division, A-5668-03T5, June 24, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18150

Merit System Board’s final decision on remand that the petitioner was “psychologically unfit to perform effectively” the duties of a sheriff’s officer and that his name should be removed from the eligible list affirmed; the petitioner failed to show that the Board’s decision was arbitrary, capricious, unsupported by the record, or in violation of “express or implicit legislative policies”; the Board (1) properly recognized that the public “expects applicants for employment in law enforcement positions to be held to a higher standard of personal accountability” and (2) properly concluded that, although some of the charges against the petitioner eventually were dismissed and expunged, the petitioner’s “negative contacts with law enforcement” were “a matter of record” and could be considered when determining whether he was a suitable candidate for a law enforcement position; the petitioner’s assertion that he was being discriminated against due to his religious beliefs lacked “sufficient merit to warrant any further discussion.”

DRUNK DRIVING
STATE v. RANSOME
Appellate Division, A-3096-03T2, June 24, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18147

Conviction of driving while intoxicated affirmed substantially for the reasons expressed by the Law Division; the police stopped the defendant at a sobriety checkpoint at a busy intersection on the evening of St. Patrick’s Day; when a police officer smelled alcohol on the defendant’s breath and thought that the defendant seemed sleepy or intoxicated, he directed the defendant to an assessment area where the defendant faltered during field sobriety tests; after the defendant was arrested, Breathalyzer tests were administered, and he admitted drinking alcohol that day; there was no error in the Law Division’s analysis of the constitutionality of the sobriety checkpoint; there was “ample support” for admitting the results of the Breathalyzer tests into evidence; the defendant’s contention that the police officer should have questioned him further about “other health conditions” and his various challenges to the way that the Municipal Court conducted the trial are rejected.

TORTS
MUASAU v. ELFANT
Appellate Division, A-4608-03T2, June 23, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18143

Jury verdict awarding $1 million to the plaintiff administratrix in a wrongful death action affirmed; the decedent was killed in an automobile accident, and the only issue at trial was damages for the loss of companionship, advice, counsel, and guidance experienced by the decedent’s wife and four daughters; at trial, the plaintiff presented testimony from an expert witness, the four daughters, the wife, and the decedent’s ex-wife; contrary to the defendants’ arguments on appeal, (1) the trial court correctly denied their Rule 4:37-2(b) motion to dismiss due to insufficient evidence at the end of the plaintiff’s case and (2) the trial court did not err by barring evidence of the decedent’s child support arrears.

LAND USE
FLOWER v. TOWNSHIP OF BRIDGEWATER PLANNING BOARD
Appellate Division, A-573-04T2, June 23, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18144

Final judgment dismissing the plaintiffs’ complaint in lieu of prerogative writs that challenged the resolution of the defendant Planning Board affirmed substantially for the reasons stated by the trial court; the resolution granted the defendant developer preliminary and final site plan approval with variances for the construction of an age-restricted housing development in the R-40 zone; in response to the plaintiff’s arguments, the trial court properly determined (1) that the proposed development is a permitted conditional use in the R-40 zone and that the Township did not intend to exclude types of senior housing not specifically named in the ordinance, (2) that the Planning Board had adequately addressed the traffic and drainage problems, and (3) that the Planning Board’s approval was not arbitrary, capricious, or unreasonable.

ESTATES AND TRUSTS
IN RE ESTATE OF BOYER
Appellate Division, A-1071-04T5, June 23, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18145

Order that approved the executrix’s account and that denied the application for attorney’s fees by four beneficiaries who took exceptions to the account affirmed; the executrix’s account awarded commissions and attorney’s fees to her; contrary to the beneficiaries’ arguments on appeal, the trial court did not err (1) by dismissing without discovery or a hearing the beneficiaries’ exception that alleged that the executrix directed the first appraiser to provide an artificially low price for the decedent’s real property, (2) by denying attorney’s fees under Rule 4:42-9(a)(2) to the beneficiaries because there was no basis to conclude that they increased the value of the real property, and (3) by resolving in her favor the issue of the executrix’s occupancy of the property without paying rent.


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