NEW JERSEY LAWYER

DAILY BRIEFING      07/12/2005


News Briefs

CODEY SIGNING PUBLIC ADVOCATE RESTORATION LAW
The restoration of the Department of Public Advocate becomes official Tuesday when acting Gov. Richard J. Codey is scheduled to sign the enabling legislation. The department, banished under former Gov. Christie Whitman in the mid-1990s, has a mandate to aggressively pursue wrongs within state government, including suing other state agencies. Over the years the department took on many controversial causes, including Mount Laurel exclusionary zoning and restriction to beach access. The next governor will name the head of the cabinet-level agency. 7-11-05

AUTO DEALERS SETTLING OVERCHARGING CLAIMS
Automobile dealers in the state are flocking to settle suits alleging they’ve been overcharging for the registration of vehicles they sell. The DCH Auto Group has settled a case, approved in Essex County court, that could require its dealers to repay more than $5 million to about 50,000 customers, and Flemington Car & Truck Country has agreed to repay about $30 each to 80,000 customers in a settlement approved in Middlesex County court. Andrew R. Wolf of Galex Wolf in East Brunswick, who represented the plaintiffs in the Flemington suit and has negotiated several similar settlements, said the process has been aided by a 2004 Attorney General’s Office opinion that overcharging for registration fees violates the Consumer Fraud Law. The New Jersey Coalition of Automotive Retailers claims the overcharges were “honest mistakes.” 7-11-05

MONTGOMERY CONSIDERS LAW AGAINST UNDERAGE DRINKING
Montgomery Township is considering an ordinance against underage drinking on private property. A statute giving municipalities that option was enacted in 2000 after having been bottled up in the legislature many years. Montgomery officials, concerned about out-of-control parties held when parents aren’t home and about drinking in fields and back yards, have directed township attorney Kristina P. Hadinger of Princeton’s Mason Griffin & Pearson to research the measure. Michael Beltranena, township police director, said the ordinance would be similar to one in West Windsor, which carries a $250 fine and a possible driver’s license loss. A slew of Shore communities already have such laws. 7-11-05

APPEAL PLANNED TO RULING ALLOWING DEFAMATION AGAINST LAWYER
Linda B. Kenney, of counsel at Martin Melody in Shrewsbury, plans to challenge last week’s Appellate Division ruling allowing a defamation lawsuit against her by a newspaper reporter. Carol Gorga Williams of the Asbury Park Press claims that while she was writing a story about the then-head of Ocean County Public Defender’s operations, Robert L. Tarver Jr., Kenney, who was Tarver’s attorney, sent a letter to her editors claiming Williams was having an affair with a source. The appeals panel reversed Monmouth County Judge William P. Gilroy’s ruling that the letter was privileged because it was related to a discrimination suit Tarver had filed against the state. Kenney’s lawyer, Michael J. Canning of Giordano Halleran & Ciesla in Middletown, said he will appeal, and Tarver’s lawyer, Bruce S. Rosen of McCusker Anselmi Rosen Carvelli & Walsh in Chatham, has said he is considering an appeal. 7-11-05

HIGHWAY AUTHORITY TO FIGHT ORDER TO REHIRE TOLL COLLECTOR
The New Jersey Highway Authority plans to appeal an Atlantic County court order that it rehire a toll-taker it fired for using his toll booth to distribute state pamphlets on which he added derogatory remarks about and defaced a photograph of then-Gov. James E. McGreevey. 7-11-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, JULY 11, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, JULY 11, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, JULY 12, 2005.


APPROVED FOR PUBLICATION
INSURANCE
BELTRAN v. DELIMA
Appellate Division, A-6056-03T2 and A-6673-03T1, approved for publication July 11, 2005. (14 pages). Facts-on-Call Order No. 92575

The decisions of the New Jersey Supreme Court in DiProspero v. Penn and Serrano v. Serrano apply to all prejudgment matters pending in trial courts and to cases that are on direct appeal.

INSURANCE
PUNGITORE v. BROWN
Appellate Division, A-5662-03T1, approved for publication July 11, 2005. (5 pages). Facts-on-Call Order No. 92574

This verbal threshold case was reversed and remanded for trial in light of Serrano v. Serrano, which rejected the creation of a subjective standard of serious injury.

INSURANCE
GREER v. NAKLICKI
Appellate Division, A-3433-03T5, approved for publication July 11, 2005. (17 pages). Facts-on-Call Order No. 92573

Even though the declaration sheet of the personal umbrella policy issued to the named insured listed the total number of cars in the household, including the car owned by his son, Lehrhoff v. Aetna Cas. and Sur. Co. did not require coverage for the son’s accident (1) where the son was emancipated and had not lived at the named insured’s home since graduating from college two years before the accident and (2) where the named insured was obligated to report his son’s change of residence but did not do so.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
BROADWAY FAMILY PRACTICE v. WILLITTS
Appellate Division, A-3700-03T1, July 11, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18209

Summary judgment dismissing a legal malpractice lawsuit against the defendant attorney based on the entire controversy doctrine as it existed before Olds v. Donnelly affirmed; the defendant had represented the plaintiff in the purchase of a medical practice, which included a lease with an option to purchase the premises; the plaintiff sued the landlord over the option and was told that there was still time to exercise the option; the defendant failed to follow the plaintiff’s instruction to timely exercise the option; with another attorney, the plaintiff settled with the landlord, but the malpractice claim was not added to the underlying lawsuit; the malpractice suit was barred because the settlement and dismissal of the underlying action occurred before Olds was decided, and the underlying action was not entitled to “pipeline” retroactivity under Olds.

TORT CLAIMS ACT
RYAN v. PRINCETON BOROUGH
Appellate Division, A-409-03T2, July 11, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18211

Judgment against the defendant Borough in a slip-and-fall action reversed and remanded for a new trial, and denial of the Borough’s motions for involuntary dismissal and for judgment n.o.v. affirmed; while crossing a street, the plaintiff stumbled in a hole and fell; after the jury’s verdict for the plaintiff, the trial court granted the plaintiff’s motion for an additur and increased the judgment, and it denied the Borough’s motion for judgment n.o.v. or for a new trial; the evidence was sufficient for a finding of liability under the New Jersey Tort Claims Act; however, a new trial was necessary because the trial court erred by refusing to submit to the jury the issue of the plaintiff’s comparative negligence.

LAND USE
TOWNSHIP OF MONTVILLE v. G.I. AUTO SALVAGE, INC.
Appellate Division, A-5248-03T5, July 11, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18210

Judgment that permanently enjoined the defendants from intensifying their use of one lot and from using another lot for a nonconforming use and that ordered them to cease the acceptance, recycling, and storage of construction debris affirmed substantially for the reasons expressed by the trial court; the defendants operated an automobile salvage yard as a pre-existing nonconforming use on a lot that was in the plaintiff Township’s industrial I-1A zone; the Township claimed that the defendants had expanded the salvage yard into a lot that was in a zone that does not allow such an activity and that they had expanded the scope of the nonconforming use by accepting and recycling construction debris, which was not permitted in either zone; the record supported the trial court’s findings and conclusions.

LAND USE
TRINITY BAPTIST CHURCH v. PLANNING BOARD OF MONTVILLE TOWNSHIP
Appellate Division, A-155-03T5, July 8, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18206

Law Division orders (1) that reversed the defendant Planning Board’s denial of an application for site plan approval and variances due to a Board member’s conflict of interest and that remanded for proceedings without the member and (2) that denied the Board’s motion for reconsideration affirmed; although the member’s mother owned a unit in a condominium complex that was located within 200 feet of the affected property, he declined to recuse himself; while the application was being heard, ownership of the unit passed to a trust of which the member was both the trustee and a beneficiary; after the order barring the member’s participation on remand was entered, the Board sought reconsideration based on the trust’s sale of the unit and distribution of the proceeds; contrary to the Board’s arguments on appeal, the ownership interest in the unit by the member’s mother and the trust was sufficient to require the member’s disqualification, and the sale of the unit and the distribution of proceeds did not cure the conflict.

REAL PROPERTY
MANSOLDO v. STATE OF NEW JERSEY
Appellate Division, A-3109-03T1, July 8, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18205

Order granting summary judgment for the plaintiff landowner in an inverse condemnation action but limiting the plaintiff’s damages to the value of the property for its permitted uses affirmed; the delineation of the Hackensack River floodway by the Department of Environmental Protection in 1982 effectively prohibited construction on the plaintiff’s property in New Milford; the plaintiff brought this action after the DEP denied a hardship waiver to permit the construction of residences on the property; contrary to the plaintiff’s argument on appeal, the trial court properly concluded that the property should be valued based on its permitted uses as parkland, open space, or a parking lot rather than on its prohibited use as building lots; the taking occurred when the hardship waiver was denied — not when the DEP designated the floodway — because the “practical effect” of that denial was that even the permitted uses were not viable.

NEGLIGENCE
DUCK-HI MIN v. KADELL INC.
Appellate Division, A-5645-03T5, July 8, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18208

Summary judgment for the defendant condominium association and the defendant contractor in an action that alleged that the plaintiffs’ condominium unit was damaged by burst pipes affirmed; the pipes burst while the contractor was installing a new roof on the association’s building; the trial court properly determined that the plaintiffs failed to establish a prima facie case of negligence against either of the defendants; contrary to the plaintiffs’ argument on appeal, they could not rely on res ipsa loquitur (1) as to the association because they could not demonstrate that the bursting of pipes “ordinarily bespeaks negligence” and (2) as to the contractor because there was no evidence that the contractor exercised control over the pipes.

EMPLOYMENT LAW
OLIVERI v. Y.M.F. CARPET, INC.
Appellate Division, A-5026-03T3, July 8, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18207

Judgment entered after a jury trial for the plaintiff ex-employee in an action under the Conscientious Employee Protection Act reversed and remanded for a new trial; the plaintiff alleged that she was fired for refusing to falsify documents and to testify falsely in another case, but the defendant employer claimed that the plaintiff voluntarily left employment; the Division of Unemployment and Disability Insurance had found the plaintiff eligible for unemployment benefits because she had been terminated; on the first day of trial, the trial court ruled that the defendant was collaterally estopped from challenging the Division’s determination that the plaintiff had been terminated and had not left employment voluntarily; based on the “differences in the quality [and] extensiveness of the procedures followed” in the Division and the trial court, the defendant should have been allowed to argue at trial that the plaintiff left her employment for reasons other than being terminated.


To Order Decisions

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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