NEW JERSEY LAWYER

DAILY BRIEFING      07/01/2005


News Briefs

APPELLATE DIVISION TO START E-MAILING DECISIONS TO COUNSEL
Within the next several months, the Appellate Division will start distributing opinions to counsel via e-mail. The appeals court is requesting lawyers provide e-mail addresses on their briefs and other papers. Printed copies of opinions will continue to be distributed while the new procedure is being implemented and to lawyers without e-mail. The court is taking the e-mail step to expedite distribution. 6-30-05

POLICEMAN SUES FELLOW OFFICER OVER SHOOTING INCIDENT
A Galloway Township police officer who shot a suspect while responding to a call at the home of another officer has sued that officer. Richard Komar says he has suffered psychologically as a result of shooting Kimberly Rinaldo, the ex-girlfriend of fellow officer Joseph Mangueras. Komar’s suit claims Mangueras negligently allowed her to tote a gun during the incident two years ago when Komar said he shot the woman’s fingers in self-defense after she pointed the gun at him. She’s serving a six-year prison sentence for aggravated assault in that incident and has filed her own U.S. District Court suit seeking damages from the police department. 6-30-05

STREET GANGS CONSTITUTE ARMIES
Street gangs may be more accurately referred to as armies, according to Attorney General Peter C. Harvey’s report on gang activity. The report, based on findings from last year, tallied 700 gangs with some 17,000 members in the Garden State. But just 28 of those gangs have half the members and just two clearly are the most dominant. The Bloods were found to have 4,000 members and the Latin Kings 2,345. 6-30-05

CELL PHONES PROMPT GUIDELINES IN FEDERAL COURTS
Security concerns have prompted the federal courts to issue recommendations on whether cell phones should be permitted in courthouses. The decision is up to each courthouse. In Newark, Trenton and Camden, they’re OK to use. In Detroit, officials are lifting the ban on the devices after 20 years, but they may be used only in designated areas or risk confiscation. After six months, officials will review the policy. Officials on the national level suggest local courthouses post signs specifying cell phone rules and feature the information on their websites. 6-30-05.

NEW YORK HIGH COURT BOOTS BROOKLYN SURROGATE OFF BENCH
The New York Court of Appeals has upheld the removal of Brooklyn’s surrogate, Judge Michael H. Feinberg. He had a friend handle the legal matters of people who died without wills. In In re Feinberg, the high court said he “debased his office and eroded public confidence” in the court system. The court said his “failure was made all the more egregious by his appointment, without considering other candidates, of a close personal friend and political supporter to whom he summarily awarded more than $8.5 million between 1997 and 2002 and who personally took home a substantial portion of that amount without the surrogate’s independent assurance in each case the compensation was reasonable.” In February, the State Commission on Judicial Conduct had recommended Feinberg’s removal. 6-30-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, JUNE 30, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JUNE 30, 2005:

INSURANCE
FRENCH v. HERNANDEZ
New Jersey Supreme Court, A-58, June 30, 2005. (21 pages). Facts-on-Call Order No. 92555

Because the employee was not a permissive user of his employer’s truck when he caused an accident that injured the plaintiff, summary judgment should have been entered for the employer’s insurance carrier in the plaintiff’s negligence action.

DOMESTIC VIOLENCE
SHAH v. SHAH
New Jersey Supreme Court, A-93, June 30, 2005. (27 pages). Facts-on-Call Order No. 92556

When a domestic violence complaint is filed in the Family Part in a county where the alleged domestic violence occurred, where the defendant lives, or where the plaintiff lives or is sheltered, New Jersey courts have the authority to issue an ex parte temporary restraining order upon a showing that the plaintiff is in danger of domestic violence and that the TRO is necessary to protect the plaintiff’s life, health, or well-being. If personal jurisdiction over the defendant cannot be exercised within constitutional due process limits, the TRO may provide for only prohibitory relief, a final restraining order may not issue, and the ex parte order will remain in effect until a further order is issued by the Family Part.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JULY 1, 2005.



APPROVED FOR PUBLICATION
INSURANCE
STRICKLEN v. FERRUGGIA
Appellate Division, A-4851-03T2, approved for publication June 30, 2005. (18 pages). Facts-on-Call Order No. 92557

The injured co-owner of an automobile who is involved in an accident is bound by the election of the verbal threshold option by the other co-owner where the other co-owner is the only owner listed as a “named insured” and where the injured co-owner is an “additional driver” but not a “named insured” and is not a member of the named insured’s household.

INSURANCE
BRYANT v. OHIO CASUALTY INSURANCE CO.
Appellate Division, A-5191-03T1, approved for publication June 30, 2005. (8 pages). Facts-on-Call Order No. 92558

Where an automobile insurer pays personal injury protection benefits to its insured by check, the N.J.S.A. 39:6A-13.1a two-year limitations period commences on the date that the check was delivered to the insured rather than the date that the check was issued.

LANDLORD AND TENANT
PASQUINCE v. BRIGHTON ARMS APARTMENTS
Appellate Division, A-6933-03T1, approved for publication June 30, 2005. (21 pages). Facts-on-Call Order No. 92559

The plaintiff was properly rejected as a proposed tenant due to his lack of creditworthiness rather than his status as a recipient of Section 8 housing assistance. Creditworthiness is a legitimate, nondiscriminatory criterion that landlords may consider when evaluating prospective tenants, and there was no evidence that the repeal of N.J.S.A. 2A:42-100 was intended to change that.

CRIMINAL TRIALS
STATE v. PAGAN
Appellate Division, A-3899-03T4, approved for publication June 30, 2005. (13 pages). Facts-on-Call Order No. 92560

In an appeal from CDS convictions, (1) the police officer properly seized the CDS evidence from the co-defendant during a warrantless search incident to a lawful arrest, (2) the defendant’s ineffective assistance of counsel claim was without merit, (3) the defendant’s sentence did not violate Blakely v. Washington, and (4) there was insufficient evidence that the trial court abused its discretion in weighing the aggravating and mitigating factors and imposing the presumptive term for a repeat drug offender.

CRIMINAL TRIALS
STATE v. MESSINO
Appellate Division, A-5549-01T3, approved for publication June 30, 2005. (30 pages). Facts-on-Call Order No. 92561

The defendant’s convictions of aggravated manslaughter and endangering the welfare of a child and the sentences imposed were affirmed (1) because he had been informed of the substance of his rights under Miranda, (2) because his statement to the interrogating officer was not a request for an attorney, (3) because the jury had been charged properly on murder and aggravated and reckless manslaughter, (4) because the trial judge did not abuse his discretion by allowing autopsy photos to be shown to the victim’s mother, and (5) because the pre-2001 version of the No Early Release Act was properly applied to the sentence for endangering the welfare of a child.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
RIDDICK v. WASHINGTON
Appellate Division, A-2804-03T2, June 30, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18171

Summary judgment for the defendant tortfeasors based on the N.J.S.A. 39:6A-8a verbal threshold and consent order that extended the effect of the summary judgment decision to the defendant insurer reversed and remanded; the tortfeasors were granted summary judgment after the Law Division had concluded that the plaintiff’s proofs were not sufficient to demonstrate a serious impact under Oswin v. Shaw; by way of the consent order, the effect of the Law Division’s decision was extended to the insurer; in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, the Appellate Division was constrained to reverse and remand for further proceedings consistent with those opinions.

INSURANCE
ZARDO v. HERTZ CORP.
Appellate Division, A-5821-03T5, June 29, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18168

Summary judgment for the defendant car rental company in an action arising from the plaintiff renter’s accident in a rental car affirmed; the other driver involved in the accident sued the plaintiff and the rental company; the plaintiff had declined the rental company’s liability insurance supplement, and he had an automobile policy issued by the third-party defendant insurer; the rental company, which self-insured its vehicles, agreed to provide a defense to the plaintiff but claimed that, pursuant to the rental contract, its liability was the $15,000/$30,000 minimum under New Jersey’s automobile financial responsibility law; contrary to the arguments of the plaintiff and the insurer, the rental company was not liable as a self-insurer to the full extent of its assets; Robinson v. Coia and Agency Rent-A-Car v. Indemnity Ins. controlled.

DOMESTIC VIOLENCE
URBANK v. URBANK
Appellate Division, A-5708-03T3, June 30, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18170

Denial of the defendant’s application requesting that the trial judge disqualify himself and denial of the defendant’s motion to dismiss the final domestic violence restraining order against him affirmed; the defendant asserted that the trial judge had had ex parte communications with the plaintiff before issuing the temporary restraining order; the defendant’s disqualification application was properly denied; by statutory prescription, a hearing in a domestic violence action almost always is the result of an ex parte application by one party without notice to the other party; when the trial judge issued the TRO, he knew that a domestic violence restraining order had been issued against the defendant by the Maine courts, and New Jersey courts are required to give full faith and credit to domestic violence orders issued by another state; thus, it was “fully appropriate” for the judge to issue a TRO in the plaintiff’s favor, subject to a final hearing.

DRUNK DRIVING
STATE v. BELLINO
Appellate Division, A-76-04T5, June 30, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18169

Convictions of driving while intoxicated and failing to maintain a lane affirmed; the defendant was charged with driving while intoxicated on October 11, 2003, was found guilty on that charge in the Municipal Court on May 14, 2004, and was found guilty on that charge in the Law Division after a trial de novo on August 19, 2004; the defendant was convicted of driving while intoxicated based only on observational proofs, and she was sentenced as a first-time offender to a six-month license suspension for that offense; effective January 20, 2004, N.J.S.A. 39:4-50(a)(1) was amended to reduce the license suspension for a first-time offender who is convicted based only on observational proofs to three months; contrary to the defendant’s argument on appeal, there was “no principled basis” on which to conclude that she was entitled to the benefit of the reduced penalty for an offense that was committed before the amendment.

FROM THE FEDERAL COURTS
LANDLORD AND TENANT
JAASMA v. SHELL OIL CO.
Third Circuit, No. 04-2095, June 28, 2005. By Becker, C.J. Also on panel: Roth, C.J. and Fuentes, C.J. Appealed from the U.S. District Court for the District of New Jersey. (21 pages). Facts-on-Call Order No. 92554

In an action that alleged the breach of a lease to operate a gas station, the Third Circuit reversed orders that granted judgment as a matter of law to the defendant lessee and its assignee and that excluded the testimony of the plaintiff lessor’s expert. One week before the lease terminated, the assignee removed an underground gasoline storage tank from the premises, which led to an investigation by the New Jersey Department of Environmental Protection that lasted more than two years. The plaintiff alleged that the defendants breached the lease by failing to return the property to its “original state,” and she sought to recover damages for the loss of use during the DEP investigation. The Third Circuit concluded (1) that the lease language and the parties’ course of dealing raised a jury question about whether the defendants had breached a duty under the lease, (2) that a temporary loss of use due to the uncertain environmental status of property is a cognizable measure of damages under New Jersey law, even if no pollution occurred, (3) that the plaintiff had presented sufficient evidence for a jury to find that she had made reasonable mitigation efforts, and (4) that the District Court erred by excluding the testimony of the plaintiff’s expert due to a misunderstanding of its purpose.

MEDICAL MALPRACTICE
LOVE v. RAN
COCAS HOSPITAL, U.S. District Court (DNJ), Civil Action No. 01-5456, June 27, 2005. By Irenas, Senior U.S.D.J. (18 pages). Facts-on-Call Order No. 92551

The District Court granted the defendant nurses’ motion to dismiss the plaintiff stroke victim’s medical malpractice claim against them based on the two-year statute of limitations under N.J.S.A 2A:14-2. The plaintiff received treatment for syncope, falling, and high blood pressure from the nurses at the defendant hospital’s emergency department on March 10, 2000. Two days later, the plaintiff was found to have suffered a stroke. The plaintiff filed her original complaint on November 27, 2001, and she moved to amend her complaint to join the nurses in their individual capacities on February 23, 2004. The magistrate judge granted the motion to amend because further discovery was required to determine whether the discovery rule applied to toll the statute of limitations. The plaintiff asserted that the statute of limitations was tolled until November 15, 2003 because she became aware of the nurses’ potential liability through an expert report issued on that date. The District Court determined that the discovery rule did not apply because the emergency department records that the plaintiff obtained on or about March 16, 2000 “clearly” imposed on her a duty to investigate whether there was a potential claim against the nurses.


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