NEW JERSEY LAWYER

DAILY BRIEFING      06/07/2005


News Briefs

IF ELECTED, CORZINE WOULD OUST HARVEY
One way or another, the days of Attorney General Peter C. Harvey as the state’s top law enforcement officer are numbered. U.S. Sen. John Corzine, expected to breeze to victory tonight for the Democratic gubernatorial nomination, has made it clear Harvey, a Democrat, will be out in a Corzine administration. In an interview with the Courier-Post, Corzine told the Cherry Hill paper he would not give another term to Harvey, appointed by former Gov. James E. McGreevey. But Corzine praised the attorney general’s record, saying, “I think he’s done more than is generally perceived.” It’s not unusual for a new governor to choose his own attorney general, but rarely do candidates show their hand this early. Harvey has come under criticism in some quarters for not being aggressive enough on corruption probes, a point he disputes. 6-6-05

REAL ESTATE BOOM BOOSTS THEFT CLAIMS AGAINST LAWYERS
Last year there was an unusually high number of claims paid by the New Jersey Lawyers’ Fund for Client Protection against lawyers who bilked clients in real estate transactions. Now, the word is that this state isn’t alone in that regard as the real estate boom has brought a corresponding explosion in allegations that New York State lawyers are pilfering money from clients’ escrow accounts. Timothy J. O’Sullivan, executive director of the Lawyers’ Fund for Client Protection in New York, said claims of real estate theft have surged since 1999 and now exceed the number of claims of theft from lawsuit settlements, trusts and estates. In 2004, 100 clients reported real estate thefts by their attorney and the fund paid $3.6 million in compensation to victims, up from 44 such cases in 1999 when $555,345 was paid. 6-6-05

JUDICIARY COMMITTEE TO CONSIDER LIVING WILL BILLS
Separate bills addressing the thorny issue of a person’s involvement with a spouse’s living will, a focal point of the Terri Schiavo case, are the subject of two measures to be considered in Trenton Thursday by the Senate Judiciary Committee. S-2519 would require marriage license issuers to give applicants a state-prepared booklet about advance directives; S-2520 would require judges in divorce and termination of domestic partnership actions to ask whether the parties want to change their advance directives. Committee Chairman Sen. John Adler (D-Camden) sponsors both bills. 6-6-05

PROPOSAL WOULD BOOST PAY OF N.Y. JUDGES OVER JURISTS HERE
Under a plan pushed by New York Gov. George Pataki, most trial judges in the Empire State would have their salaries raised from $136,700 to $162,700 or equal to what federal judges earn. In New Jersey, Superior Court judges are paid $141,000. Pataki wants the top judge there, Court of Appeals Judge Judith S. Kaye, to receive $175,068, up from $156,000. New Jersey’s Chief Justice Deborah T. Poritz is paid $164,250. 6-6-05

MUNICIPAL JUDGE TO TRANSFER CASES INVOLVING POLICEMAN CLIENT
The private practice of part-time municipal judges may be fraught with potential conflicts. Secaucus Municipal Judge Kathleen A. Walrod, a partner of Walrod & D’Amico, was reminded of that the hard way when the town council criticized her for representing a town police officer in a child-support case as part of her private practice, also in Secaucus. Walrod said any municipal cases involving Sgt. David Ianuale would be assigned to another judge. Lori Just, who’s fighting Ianuale for child support in Essex County Superior Court, complained of the potential for conflict during a council meeting. 6-6-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, JUNE 6, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, JUNE 6, 2005:

INSURANCE
PINTO v. NEW JERSEY MANUFACTURERS INSURANCE CO.
New Jersey Supreme Court, A-89, June 6, 2005. (30 pages). Facts-on-Call Order No. 92489

In a case arising from an employee’s injury in a work-related accident in a vehicle that was covered under the employer’s business auto policy, the language of the policy that denominated a corporate entity as the “named insured” was not ambiguous to the extent that it would allow any employee to be characterized as a “named insured” to avoid application of the policy’s underinsured motorist step-down clause. To avoid confusion in the future, the court imposed a duty on insurers, their agents, and brokers to inform employers about the need to include specific language to cover employees as “named insureds” on business auto policies. Justice Zazzali concurred in part and dissented in part.

INSURANCE
MURAWSKI v. CNA INSURANCE CO.
New Jersey Supreme Court, A-92, June 6, 2005. (11 pages). Facts-on-Call Order No. 92490

For the reasons expressed in Pinto v. New Jersey Manufacturers Insurance Co., underinsured motorist step-down provisions are generally enforceable if the language of the insurance contract is clear. The employee, who was injured in a work-related accident in a vehicle that was covered under the employer’s business auto policy, was not, and could not have expected to be, a “named insured” based on the policy’s language. Remand was required to determine whether the employee, who did not have a personal auto insurance policy, was insured under his mother’s auto insurance policy and was thus susceptible to her policy’s limits on UIM coverage. Justice Zazzali dissented.

INSURANCE
SKEETE v. DORVIUS
New Jersey Supreme Court, A-14, June 6, 2005. (24 pages). Facts-on-Call Order No. 92491

Changes to insurance policies must be conveyed fairly; the notice of the addition of a step-down provision in this case was insufficient because it was presented as part of “an essentially undifferentiated passel of two hundred documents.” Justice Albin concurred, and Justice LaVecchia dissented.

THE SUPREME COURT has announced that it will release an opinion in PUDER v. BUECHEL, A-95, on June 7, 2005. The issue on appeal in Puder addresses whether a legal malpractice claim that alleged negligence in the settlement of matrimonial claims could proceed even though the matrimonial claims ultimately were resolved by a new settlement without a court deciding whether the initial settlement was enforceable.



APPROVED FOR PUBLICATION
INSURANCE
GAZIS v. MILLER
Appellate Division, A-4605-03T1, approved for publication June 6, 2005. (14 pages). Facts-on-Call Order No. 92493

The rule of Cooper v. Gov’t Employees Ins. Co. — that an insured’s failure to give timely notice of an accident under an occurrence-based policy forfeits the policy only when the insurance company can prove appreciable prejudice — applies to an excess policy issued by a risk retention group that operated under the Liability Risk Retention Act of 1986, 15 U.S.C. §3901, et seq.

ENVIRONMENTAL LAW
SJC BUILDERS, LLC v. STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION
Appellate Division, A-2558-03T3, approved for publication June 6, 2005. (13 pages). Facts-on-Call Order No. 92494

The Appellate Division affirmed the final determination of the Department of Environmental Protection (1) that a proposed 31-unit housing development, which as a whole would discharge more than 6,000 gallons of sewage per day but which the developer proposed to subdivide into separate units with sewage disposal systems with capacities of less than 2,000 gallons, constituted a single property for purposes of the New Jersey Pollution Discharge Elimination System regulations and (2) that a NJPDES permit was required because the development would discharge more than 2,000 gallons of sewage per day.

COMMERCIAL TRANSACTIONS
VALLEY NATIONAL BANK v. P.A.Y. CHECK CASHING
Law Division, Passaic County, PAS-L-5302-02, approved for publication June 3, 2005. (28 pages). Facts-on-Call Order No. 92495

The plaintiff bank was entitled to recover the full amount of the monies it paid to the defendant licensed check casher on a check issued by the bank to a payee who was a natural person and a payee that was a fictitious corporation because the check casher breached the presentment warranties contained in N.J.S.A. 12A:4-208(a)(1). Although the check casher violated the Check Cashers Regulatory Act of 1993, the bank could not seek redress directly under that Act. [The Appellate Division affirmed for the reasons expressed in this opinion in VALLEY NATIONAL BANK v. P.A.Y. CHECK CASHING, A-5359-03T1, approved for publication June 3, 2005. (3 pages). Facts-on-Call Order No. 92486.]

LANDLORD AND TENANT
FRANCO v. RIVERA
Law Division, Hudson County, Special Civil Part, LT-866-05, approved for publication May 23, 2005. (3 pages). Facts-on-Call Order No. 92492

On review pursuant to Rule 6:6-4(a), the proposed settlement in a summary action for possession — which provided for a judgment of possession and required the unrepresented tenant to make a payment and to vacate the premises by a specified date — was not fair because the landlord would not have been able to establish a good cause for eviction if the case had gone to trial.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
MARTUCCI v. FREEHOLD REGIONAL HIGH SCHOOL DISTRICT
Appellate Division, A-1722-04T2, June 6, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18049

Order disqualifying the attorney of the plaintiff former high school district employee from continuing the representation due to a telephone conversation in which the attorney allegedly discussed with a member of the board of the defendant high school district the subject matter of the plaintiff’s underlying Conscientious Employee Protection Act action reversed; after the attorney, who had earlier represented the board member in another matter, called the board member about the board’s extension of the school superintendent’s contract, the board moved to disqualify the attorney from representing the plaintiff because, among other things, the attorney and the board member allegedly spoke about the CEPA action; the record did not support the trial court’s finding that the conversation related to the subject matter of the CEPA action; the trial court properly rejected the other arguments raised for disqualifying the plaintiff’s attorney.

LAND USE
SAVINO v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF LYNDHURST
Appellate Division, A-3586-03T5, June 6, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18052

Dismissal of the plaintiff’s action in lieu of prerogative writs that challenged the defendant Board of Adjustment’s grant of a variance for the defendant applicant, which was a bank, reversed and remanded; the Board’s resolution was nullified by a conflict of interest, which existed due to the familial relationship between the bank’s vice president/branch manager, who had testified at the Board proceedings, and a Board member who had actively participated in the decision and had voted on the resolution; the Board member’s wife was the sister of the branch manager’s husband; the circumstances of this case “bespeak both an indirect pecuniary interest and a direct personal interest sufficient to disqualify” the Board member.

LAND USE
KRAUSE v. TOWNSHIP OF CRANFORD ZONING BOARD OF ADJUSTMENT
Appellate Division, A-1958-03T3, June 6, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18050

Order affirming the defendant Zoning Board’s issuance of bulk variances and its determination that a use variance was not required for the defendant property owner’s introduction of a permitted use at the site of a pre-existing nonconforming use affirmed; the plaintiff, who was a neighboring property owner, had unsuccessfully challenged the defendant owner’s earlier application to operate a gas station, which was a pre-existing nonconforming use, at the site; the plaintiff then brought an action in lieu of prerogative writs when, in connection with the defendant owner’s application to convert two service bays in an existing building into a sandwich shop, the Board granted five bulk variances and one of three exceptions; as determined by the Law Division, there was no basis for disturbing the Board’s decision that the defendant owner was not required to obtain a variance to include a permitted use — the sandwich shop — in the pre-existing nonconforming gas station.

PROFESSIONAL MALPRACTICE
CHRISTENSEN v. JUNGELS
Appellate Division, A-4064-03T1, June 6, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18051

Jury verdict awarding the plaintiff $320,000 in compensatory damages and the plaintiff’s husband $30,000 on his per quod claim and denial of the defendant dentist’s motion for judgment notwithstanding the verdict or for a new trial or remittitur affirmed in a dental malpractice action; one of the comments by the plaintiff’s counsel during summation was improper and should be avoided in the future, but it was not reversible error in light of the trial court’s curative instructions; counsel’s other comments were “borderline” and were not prejudicial, and the trial court’s curative instruction was sufficient; the defendant’s motions pursuant to Rule 4:37-2b and Rule 4:40-2b were properly denied, and there was sufficient credible evidence to support the damages award.

SANCTIONS
TRIFFIN v. PACIFIC CAPITAL BANKCORP
Appellate Division, A-2947-03T1, June 3, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18047

Order awarding the defendant bank $2,860 in frivolous litigation attorney’s fees affirmed; when the plaintiff’s complaint was dismissed on summary judgment and deemed frivolous, the trial court invited the defendant to submit an affidavit of services so that the court could quantify the damages caused by the frivolous complaint; the plaintiff appealed one day after the defendant submitted its affidavit but before the trial court issued its order, and he filed an amended appeal after the order was issued; the trial court did not abuse its discretion by entertaining the defendant’s request for fees or by granting that request; contrary to the plaintiff’s arguments on appeal, the trial court did not act without subject-matter jurisdiction and did not misconstrue the standards governing motions for sanctions under Rule 1:4-8.

REAL PROPERTY
REAN v. FITZGERALD
Appellate Division, A-6897-03T1, June 3, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18046

Denial of an easement by necessity affirmed; the plaintiff owner’s sale of a landlocked lot to the plaintiff attorney was contingent on the owner’s obtaining an easement over the defendant neighbors’ lots to access a public road; the owner’s lot and the defendants’ lots were commonly owned until 1926, and the owner obtained his lot in 1948; as to one neighboring lot, the claim for an easement by necessity was extinguished by property transfers in 1946; as to the other neighboring lot, the circumstances supported both the equitable factors that the trial court applied — including the owner’s responsibility for the lot’s landlocked status, the owner’s lack of participation in the case, and the substantial prejudice to the defendants — and its conclusion that the balance of the equities favored the defendants; the plaintiffs failed to demonstrate clearly and convincingly their entitlement to an easement by necessity.

CONTRACTS
CARLUCCI v. BONHAM
Appellate Division, A-5470-03T5, June 3, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18048

Judgment of no cause of action after a bench trial on the plaintiff ex-boyfriend’s claim for compensatory and punitive damages arising from the defendant ex-girlfriend’s fraud in the inducement affirmed; the plaintiff alleged that the defendant fraudulently led him to believe that she would accompany him on a trip to Cancun and that he lost $2,287 when the defendant later refused to go; based on its finding that the plaintiff and his secretary were not credible witnesses, the trial court determined that the defendant had told the plaintiff in advance that she did not want to go on the trip with him and that the plaintiff had not met his burden of proof; the trial court’s credibility findings, which formed the basis for its decision, were supported by substantial credible evidence in the record.


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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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