NEW JERSEY LAWYER

DAILY BRIEFING      06/06/2005


News Briefs

NEXT NJ CHIEF JUSTICE COULD BE A PLACE-HOLDER
A convergence of events might make the next chief justice a caretaker of sorts. There already are four Democrats serving as justices — the traditional limit for any one party on the seven-member court. If nothing unforeseen happens, there still will be four when Chief Justice Deborah T. Poritz, a Republican, reaches the mandatory retirement age of 70 in October 2006. If Democrat Jon S. Corzine is governor, what would be his options? One would be to name Democrat James R. Zazzali to the top spot. The advantage is that Zazzali hits 70 less than a year later. At that point, Corzine could name his own Democrat to the post. For full details, see the June 6 issue of New Jersey Lawyer. 6-3-05.

UNUSUAL NURSING HOME ASSAULT CASE SCHEDULED
In one of Mercer County’s more unusual civil cases, jury selection is scheduled to begin today in a trial over the sexual assault of a woman in a Trenton nursing home. The family of the Lawrence Township woman has sued Millhouse Nursing Home and Sidney Kinch, a Philadelphia man who was prosecuted for sexually assaulting the woman while she lay comatose in the nursing home. Kinch, who was subsequently found not guilty by reason of insanity, was visiting his wife, a patient who shared a room with the victim, when the alleged assault occurred. 6-03-05

ATTORNEYS MUST CHECK FUNDS USED TO PAY FEES
An attorney has a duty to investigate the funds that a client uses to pay fees, the 5th U.S. Circuit Court of Appeals has ruled. In Federal Trade Commission v. Assail Inc. the panel upheld a U.S. District Court order that two Las Vegas solos return their retainers to the receiver for the defendant, whom lawyers unsuccessfully defended against federal charges of committing telemarketing fraud. Their retainers were paid by third-party companies after the federal government froze Assail’s assets. The panel wrote that the combined circumstances should have caused an alert “that something was awry.” 6-03-05

LAWYERS’ AVERSION TO GOING SOLO GROWS
Lawyers are increasingly disinclined to start their own practices. Ninety-three percent of lawyers surveyed nationwide said they have no ambition of starting their own practice and would not do so even if they had the necessary capital, according to a survey by the Robert Half International employment-services firm. The percentage of lawyers disinclined to go on their own is up from 84 percent in 2002 and 78 percent in and 1997. Half said the lawyers expressed concern about the administration, hiring and computer-system investment a solo practice requires. “These responsibilities demand time and energy that lawyers may prefer devoting to the actual practice of law,” it said. 6-03-05

IRS PUTS TAX ATTORNEYS ON NOTICE
The Internal Revenue Service is intensifying its search for fraud by tax attorneys and professional tax-preparers. “We’re stepping into areas where there have been abuses, but up until now have been unaddressed,” IRS Commissioner Mark Everson says. The agency has doubled the size of its Office of Professional Responsibility Overview, created new standards for all tax professionals and has been granted new tools and enforcement capability under the Jobs Act signed into law late last year. 6-03-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, JUNE 3, 2005:
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JUNE 3, 2005.

THE SUPREME COURT has announced that it will release opinions in PINTO v. NEW JERSEY MANUFACTURERS INSURANCE CO., A-89, MURAWSKI v. CNA INSURANCE CO., A-92, and SKEETE v. DORVIUS, A-14, on June 6, 2005. The is-sue on appeal in Pinto and Murawski addresses whether the underinsured motorist benefits that are available to an employee through his employer’s business auto policy are limited to the coverage that is contained in the employee’s personal auto policy by the step-down clause of the UIM endorsement of the business policy where no employees are listed as named insureds under the business policy. The issue on appeal in Skeete addresses whether an auto insurer must include in its declarations page notice of reductions in uninsured and underinsured coverage for certain pas-sengers before the changes are effective.



APPROVED FOR PUBLICATION
VALLEY NATIONAL BANK v. P.A.Y. CHECK CASHING
Appellate Division, A-5359-03T1, approved for publication June 3, 2005. (3 pages). Facts-on-Call Order No. 92486

The Appellate Division affirmed substantially for the reasons expressed by the Law Division in the opinion reported at — N.J. Super. — (2005). Where the defendant licensed check-cashing service cashed a check that bore the forged stamped endorsement of a co-payee that was a fictitious corporate party and delivered the pro-ceeds to a co-payee that was a natural person, the check-cashing service (1) breached its presentment warranties to the plaintiff bank under the Uniform Commercial Code, N.J.S.A. 12A:1-101, seq.,(2) violated the Check Cashers Regulatory Act of 1993, N.J.S.A. 17:15A-30, et seq., (3) did not satisfy its obligation of “good faith” under the UCC, and (4) therefore had no UCC defenses available to it.

LAW AGAINST DISCRIMINATION
POTENTE v. COUNTY OF HUDSON
Appellate Division, A-4564-02T1, approved for publication June 3, 2005. (14 pages). Facts-on-Call Order No. 92487

A successful claimant in an action under the Law Against Discrimination against a public entity employer is entitled to prejudgment interest pursuant to Rule 4:42-11(b).

STATUTORY CONSTRUCTION
STATE v. FROLAND
Appellate Division, A-4741-02T1 and A-7136-03T2, approved for publication June 3, 2005. (26 pages). Facts-on-Call Order No. 92488

The 1999 amendments to the kidnapping statute, which added a provision that makes a person guilty of kidnapping if he or she unlawfully removes a child “to permanently deprive a parent, guardian or other lawful custodian of custody of the victim,” render a joint custodial parent subject to prosecution under the statute for kidnapping his or her own child.

NOT APPROVED FOR PUBLICATION
PREMISES LIABILITY
YORK v. SOMLOCK
Appellate Division, A-1107-03T1, June 3, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 18044

Denial of the defendant landlord’s motion for summary judgment and a jury verdict awarding $60,000 to the plaintiff tenants reversed in an action for injuries sustained by the plaintiffs in a fire on the defendant’s premises; the evidence was sufficient to establish the existence of a fire that originated at the electrical outlet near one of the plaintiff’s beds and that the fire was electrical in origin; however, the opinion of the plaintiffs’ expert as to causation was a “foundationless net opinion”; the motion court that denied the defendant’s motion erred by crediting the expert’s opinion, and the trial court erred by allowing the opinion to be expressed before the jury and by relying on it to deny defense motions at trial; because there was no other evidence that sup-ported the breach of any duty by the defendant or “its causal relation to the fire,” the jury’s verdict could not stand.

WORKERS' COMPENSATION
HENDERSON v. KRUPP BROTHERS LIMITED
Appellate Division, A-4737-03T3, June 3, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18042

Denial of the petitioner employee’s motion to restore his workers’ compensation claim petition against the respondent employer that had been dismissed for lack of jurisdiction because the petition was filed more than two years after the occurrence of the injury affirmed; while walking to his car to drive to work, the petitioner broke his leg when he slipped and fell on ice and snow that had accumulated in the garage in his building, which was owned by the respondent; the petitioner’s attorney filed a third-party complaint and the workers’ compensation claim in the Superior Court on the two-year anniversary of the accident, but the attorney did not file the claim petition in the Division of Workers’ Compensation until two days later; the judge of compensation denied the motion to restore because the Division lacked jurisdiction where the claim was not filed within the required two-year period; the Appellate Division did not find the petitioner’s “several theories” supporting his motion to be persuasive.

LAND USE
SELLICK v. PLANNING BOARD OF THE BOROUGH OF BRADLEY BEACH
Appellate Division, A-5574-03T1, June 3, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18039

Decision affirming the defendant Planning Board’s denial of the plaintiff property owner’s application to subdivide her property into three lots reversed; in an amended application, the plaintiff sought to remove two structures from the property to make way for the construction of three single-family residences; although the proposed lots met all of the local frontage and width requirements, the Board focused on whether the subdivision would violate the local parking ordinance; the plaintiff correctly argued on appeal that she was entitled to approval of her application (1) because the subdivi-sion required no variances and (2) because, even if the “catchall” provision in the local parking ordinance — on which the Board presumably relied to deny the application — could be construed to apply to residential properties, the “vague” provision lacked standards and gave the Board “unfettered discretion” and “arbitrary power to dictate parking requirements on an ad hoc basis.”

DOMESTIC VIOLENCE
TRUAX v. TRUAX
Appellate Division, A-3050-03T3, June 3, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18045

Denial of the plaintiff’s application for attorney’s fees following the entry of a final domestic violence restraining order against the defendant reversed and remanded for reconsideration of the plaintiff’s application upon the filing of an affidavit of services pursuant to Rule 4:42-9(b) and (c); although the plaintiff failed to show that several of the incidents alleged by her were attributable to the defendant or that certain conduct constituted harassment, she did demonstrate a course of conduct by the defendant that the Family Part found to be harassment; under the circumstances, the Family Part mistakenly exercised its discretion by denying the plaintiff’s application entirely; on remand, the Family Part, when setting the amount of the fee award, has the discretion to consider the extent to which the plaintiff prevailed and the nature of the is-sues; the case did not raise novel or “legitimate” issues that warranted the denial of fees entirely.

DRUNK DRIVING
STATE v. NAWOJ
Appellate Division, A-5852-03T2, June 3, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18043

Conviction following a trial de novo for driving while under the influence pursuant to N.J.S.A. 39:4-50 affirmed; the defendant asserted that the improper administration of field sobriety tests undermined a finding of probable cause; however, even without her failed field sobriety tests, there was probable cause to arrest her; although the defendant admitted to the two police officers that she was the operator of the vehicle, the facts also “inescapably” supported the inference that the defendant was the operator of the vehicle (1) where she was found standing outside of her vehicle just after midnight on someone else’s lawn and (2) where she could not explain how the accident happened and did not say that she was not the operator of the vehicle; N.J.S.A. 39:5-25 does not require that a defendant who is arrested for DWI be brought before a Municipal Court judge at 1 a.m. for a probable cause determination.

DRUNK DRIVING
STATE v. RIVERA
Appellate Division, A-3513-03T5, June 3, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18040

Law Division de novo judgment affirming the defendant’s conviction for driving while under the influence affirmed; on remand after a first de novo review, the Municipal Court found no evidence that the Spanish-speaking defendant did not understand a patrolman’s instructions regarding field sobriety tests; in the second de novo review, the Law Division also found that the defendant was not denied his statutory right to an independent test because his rights were read in English; contrary to the defendant’s appellate arguments, the State proved by clear and convincing evidence that the Breathalyzer tests were administered properly, the Breathalyzer results should not be suppressed because the defendant failed to establish that he did not understand English, and the Municipal Court did not abuse its discretion by refusing, during a “special session,” to grant him an adjournment to call an expert witness for rebuttal testimony after closing arguments were given.

DRUNK DRIVING
STATE v. COPPOLA
Appellate Division, A-1613-04T2, June 3, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18041

Conviction of driving under the influence of alcohol affirmed; when a police officer found the defendant in a parking lot at 3:20 a.m., he was asleep in the reclined driver’s seat of his vehicle with the motor running; the defendant claimed that he had not operated his vehicle since 11 p.m., but he admitted that he had been drinking before he arrived at the lot; Breathalyzer tests administered at 3:56 a.m. and 4:05 a.m. yielded readings of .15 and .16; contrary to the defendant’s arguments on appeal, the trial court did not err (1) by finding that he had operated his vehicle while under the influence of alcohol or (2) by holding that the State must administer Breathalyzer tests within a reasonable time of an arrest rather than within a reasonable time of actual operation of a vehicle.


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