NEW JERSEY LAWYER

DAILY BRIEFING      06/09/2005


News Briefs

TAX COURT DEADLINES BILL GOES TO COMMITTEE
A bill that would set deadlines for the first time for Tax Court hearings is scheduled to be considered Thursday in Trenton by the Senate’s Community and Urban Affairs Committee. S-2322 would require the Tax Court to hear all real property tax cases within one year of their filing date and would require the Appellate Division to hear appeals of such decisions within six months of filing. Currently there are no time limits. Under the proposed legislation, when the Tax Court misses a review deadline, the state would be on the hook to pay interest on judgments for the length of any resulting delays in payment. 6-8-05

STATE NOT JUST HANGING UP ON TELEMARKETERS
The state’s Do Not Call statute, one of the nation’s toughest restrictions on overly aggressive telemarketers, has been invoked for the first time. The Attorney General’s Office has filed separate lawsuits against three Union County home improvement contracting firms alleging they made repeated telemarketing calls without being registered as telemarketers with the Division of Consumer Affairs. The law sets a $10,000 fine for first-time offenses and $20,000 for subsequent violations. While the AG’s office said these are the first suits filed under the law enacted last year, acting Gov. Richard J. Codey has indicated they won’t be the last. 6-8-05

NEW STATE JUDGES GET FIRST ASSIGNMENTS
The Administrative Office of the Courts has announced assignments for two new judges, Ned M. Rosenberg to Essex County’s criminal division and Colleen A. Maier to Cumberland County’s chancery division. 6-8-05

CASE OF $75 FEE ASSESSMENT ON LAWYERS TO BE HEARD NEXT WEEK
The New Jersey State Bar Association’s constitutional attack on the $75 fee imposed by the legislature on lawyers to subsidize unusually high medical malpractice insurance coverage costs for some doctors will be argued on the merits for the first time at 10 a.m. Wednesday before Union County Judge Thomas N. Lyons. The chancery judge earlier rejected the State Bar’s motion for a temporary injunction, but ruled the state’s largest lawyer organization has standing in the case. 6-8-05

MOTHER NATURE WORKS IN NOT SO STRANGE WAYS
Reminiscent of the mini birth boom in New York City nine months after the blackout there in 1965, hospitals in central Florida are reporting a surge in births nine months after three hurricanes ripped through the region and stranded people in their home. “There was no electricity, they were spending a lot of time at home, there were candles and I’ll leave the rest to you,” said one hospital spokesperson. Some new mothers acknowledged that hurricanes Charley, Frances and Jeanne made it difficult for them to reach their pharmacies for birth control pills. 6-8-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, JUNE 8, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, JUNE 8, 2005:

SELF-INCRIMINATION
STATE v. KNIGHT
New Jersey Supreme Court, A-43, June 8, 2005. (35 pages). Facts-on-Call Order No. 92498

The defendant’s motion to suppress his confession to the killing of a taxi driver was properly denied because there was sufficient credible evidence to find beyond a reasonable doubt that the defendant voluntarily waived his right against self-incrimination and freely gave his statement to the police; his motion to suppress his confessions to several robberies was properly denied because he waived his right to challenge the admissibility of those statements through his unconditional guilty plea to the robbery charges.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JUNE 9, 2005.



APPROVED FOR PUBLICATION
PARENT AND CHILD
FELDMAN v. FELDMAN
Appellate Division, A-1239-03T5, approved for publication June 8, 2005. (25 pages). Facts-on-Call Order No. 92499

After divorce, the primary caretaker has the sole authority to decide the religious upbringing of the children, and the secondary caretaker may not enroll the children in training and education classes for a different religion over the primary caretaker’s objection while the secondary caretaker is exercising his or her visitation rights. However, the secondary caretaker is not prohibited from exposing the children to religious services or religious holidays.

NOT APPROVED FOR PUBLICATION
LAND USE
VENUSTI v. TOWNSHIP OF MAHWAH ZONING BOARD OF ADJUSTMENT
Appellate Division, A-4258-03T1, June 8, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18068

Dismissal of the plaintiff’s complaint in lieu of prerogative writs which challenged the grant of a variance to the defendant landowners affirmed; the plaintiff objected to the landowners’ application for a variance to build a one-family house on a vacant lot in the Township’s conservation zone district; in accordance with its custom, the defendant Zoning Board waived the requirement of an environmental impact statement as long as the variance was for a one-family home; contrary to the plaintiff’s arguments on appeal, (1) the notice of public hearing was sufficient, (2) the trial court had sufficient basis to decide whether the EIS waiver was arbitrary, capricious, or unreasonable, and (3) the Board acted within its authority when it waived the EIS requirement subject to the specified conditions.

CIVIL PROCEDURE
JACQUES v. FORSYTHE
Appellate Division, A-5710-03T2 and A-5872-03T2, June 8, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18071

Denial of the plaintiff’s motion to vacate the dismissal of an automobile negligence action reversed and remanded for reconsideration on the merits under Rule 4:50-1; the plaintiff was awarded $13,500 in nonbinding arbitration on March 11, 2003, but the case was administratively dismissed on May 5, 2003 after neither party moved to confirm or reject the award; the plaintiff’s attorney certified that he had not learned of the dismissal until several months had passed, and the plaintiff moved on March 18, 2004 to restore the case; the motion was denied on April 16, 2004 because “more than one year has passed,” and the plaintiff’s motion for reconsideration was denied because “R. 4:50-1 doesn’t apply to arbitration”; the motion judge erred (1) by ruling on the reconsideration motion that Rule 4:50-1 did not apply and (2) by basing her ruling on the original motion to restore on a miscalculation of the time between the dismissal of the case and the filing of the original motion and by failing to consider Rule 4:50-1(f), which does not contain a one-year time limit.

CIVIL PROCEDURE
LEWIN v. VOLKSWAGEN OF AMERICA, INC.
Appellate Division, A-1996-03T2, June 8, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18069

Judgment approving a settlement in a class-action Consumer Fraud Act case affirmed; the appellant car purchasers who were notified of the proposed settlement with the defendant car manufacturer objected to the notice given, the settlement, and the amount of attorney’s fees sought by counsel for the class; the appellants’ arguments “clearly” lacked merit (1) because none of the appellants were adversely affected by the vehicle identification numbers that were misidentified in the notice, (2) because the failure of individual class members to receive notice of the proposed settlement did not require invalidation of the settlement or the mailing of a new notice, (3) because the attorney’s fee awards did not constitute an abuse of discretion, and (4) because, “for the reasons expressed” by the trial court, the settlement was fair and reasonable.

HUSBAND AND WIFE
ISKO v. ISKO
Appellate Division, A-6137-03T3, June 8, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18070

Final judgment of divorce affirmed; the judgment enforced the parties’ pre-marital agreement, which required the defendant ex-husband to pay $75,000 per year in alimony to the plaintiff ex-wife for life and to lease an apartment for the plaintiff in New York City for five years after they divorced; as to the plaintiff’s appeal, the trial court properly found that she was bound by the terms of the pre-marital agreement, that the agreement’s alimony provision was not unconscionable, and that she should bear the costs of moving and storing her personal property; as to the defendant’s cross-appeal, the trial court did not err by awarding the plaintiff a sum that represented the value of leasing an apartment in New York City for five years, even though the plaintiff had moved to Wisconsin, or by requiring the defendant to pay $39,000 of the plaintiff’s credit card expenses.

PERSONAL INJURY
JUSTINIANO v. PAUL G. GADOMSKI, INC.
Appellate Division, A-1488-03T1, June 7, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18065

Judgment of no cause of action after a jury trial on the issue of liability in a personal injury action arising from an industrial accident affirmed; the jury rejected the plaintiff’s theories of products liability and negligence; contrary to the plaintiff’s arguments on appeal, the trial court did not err (1) by failing to bar the defendant company from using an expert witness whose report had been submitted after discovery had ended but three months before trial, (2) by ruling that evidence that the defendant had improperly wired the machine which was involved in the accident three years before the accident was inadmissible, (3) by allowing the defendant to refer to the absence of prior accidents involving the machine, or (4) by issuing an “empty-chair” charge to the jury.

DOMESTIC VIOLENCE
IN RE WEAPONS SEIZED FROM INGALA
Appellate Division, A-6190-03T3, June 7, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18067

Family Part judgment ordering the forfeiture of the defendant ex-husband’s three pistols, two shotguns, two knives, and a bayonet and the revocation of his Firearms Purchaser Identification Card affirmed; a temporary domestic violence restraining order that was obtained by the defendant’s ex-wife contained the seizure order; among other things, the ex-wife alleged that the defendant told her that he “should put a bullet in your head”; the parties agreed to “civil restraints,” and the TRO was voluntarily withdrawn; nonetheless, the State moved for forfeiture of the weapons and revocation of the Firearms Purchaser Identification Card; based on a court-ordered alcohol evaluation, the defendant’s two convictions for driving while intoxicated, and the testimony of the ex-wife and a police detective, the Family Part determined that the weapons should not be returned to the defendant; the Family Part’s findings were supported by the record, and its conclusions based on those findings were “legally sound”; the forfeiture was warranted under N.J.S.A. 2C:21-25(d)(3) and N.J.S.A. 2C:58-3(c).

HUSBAND AND WIFE
MERCADO v. MERCADO
Appellate Division, A-2300-03T3, June 7, 2005, not approved for publication. (19 pages). Facts-on-Call Order No. 18066

Award of $30,000 in compensatory damages after a bench trial to the plaintiff ex-wife in a claim for damages under Tevis v. Tevis that arose from the defendant ex-husband’s tortious conduct against the plaintiff during the parties’ marriage and denial of the plaintiff’s motion for attorney’s fees affirmed; contrary to the defendant’s arguments on appeal, (1) the conduct considered by the trial court was properly actionable under Tevis, (2) the testimony of the plaintiff’s psychological expert was competent, and (3) the damages award was not “plainly wrong” and did not shock the judicial conscience; the trial court correctly determined that the plaintiff was not entitled to attorney’s fees under the parties’ property settlement agreement, and no fee award was authorized under Rule 5:3-5(b).

PARENT AND CHILD
WEINSTEIN v. POLTAWEC
Appellate Division, A-6886-03T5, June 7, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18064

Denial of the plaintiff father’s post-divorce-judgment motion to obtain visitation with the parties’ 16-year-old son and to modify his child support obligation and his payments toward arrears because his only income was Social Security disability benefits affirmed; as to visitation, the plaintiff had not seen the son for 11 years, the son apparently had not expressed an interest in seeing the plaintiff, and the Appellate Division deferred to the trial court’s decision that it should not burden the son by interviewing him; as to the financial obligations, the Appellate Division was “handicapped” by the incomplete record, and the plaintiff could file a new motion with proper supporting evidence that included a complete and updated Case Information Statement, an explanation of the Internet business cited by the defendant mother, and information about the publishing company that had an address that the plaintiff used.


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