NEW JERSEY LAWYER

DAILY BRIEFING      07/20/2005


News Briefs

NJ PAY-TO-PLAY BAN FAILS FEDERAL COURT TEST
In a decision that shoots a gaping hole into the legislature’s effort to control the so-called pay-to-play practice, a federal judge has ruled qualified bidders for federally funded highway projects can’t be shut out of such work just because they make hefty political donations. In State v. Mineta, U.S. District Judge Stanley R. Chesler in Trenton said it is unconstitutional for the state to try to tie contractors who make contributions with unethical conduct. A state law aimed at ending pay to play says contractors who give more than $3,000 to state or local campaigns may not receive state contracts of $17,500 or more. Acting Gov. Richard J. Codey said he is disappointed by the ruling. 7-19-05

GOODBYE I DO’S … HELLO ROOMIE?
A study from Rutgers University’s National Marriage Project has found the annual divorce rate in the United States — declining since 1980 when more than 22 in 1,000 women divorced that year — continues to fall, as last year fewer than 18 in 1,000 women divorced. Although pleased with the news, study officials note what also has declined is the number of folks even getting married in a given year. In 1976, 77 of every 1,000 women wed; last year, 40 of 1,000 tied the knot. On the rise, though, is cohabitation. In 1960, there were 439,000 unmarried, opposite-sex couples living together. That has now increased to more than 5 million. Researchers note that couples who live together and remain unmarried are twice as likely to split, and those who cohabit before they marry are more likely to divorce than those who exchange vows first and share digs second. The study analyzed data from the U.S. Census Bureau and other researchers. 7-19-05

ALTHOUGH CHILD IS IN INDIA, SUPPORT MUST ADHERE TO U.S. FORMULA
Despite the wide discrepancy between the cost of living in the United States and India, a divorced father in Pennsylvania whose wife and daughter have returned to India must pay child support according to U.S. guidelines, ruled a Pennsylvania Superior Court panel. The father in Nischal v. Nischal had argued that doing so would effectively render his wife and child “millionaires” in their homeland. In affirming that Manu Nischal pay $498 per month to support his 3-year-old daughter, senior Judge Peter Paul Olszewski wrote, “There is no evidence that the support amount awarded is oppressive or confiscatory.” Nischal contended India’s cost of living is about 1/50th of America’s and the $498 monthly support would be excessive in a “third-world country.” 7-19-05

ABSOLUTE IMMUNITY FOR SOME LAWYERS
Court-appointed lawyers representing children in contentious custody disputes cannot be sued by the parents involved, ruled the Connecticut Supreme Court. The unanimous decision in Carrubba v. Moskowitz expanded an appellate court ruling last year that granted only qualified immunity to court-appointed lawyers. According to attorney Robert J. Kor, who represented lawyer Emily Moskowitz, “This ruling is so crucial. It provides for the first time … absolute immunity to court-appointed lawyers for minor children, so they can fulfill their obligation … without fear of being sued.” Many lawyers in the Nutmeg State have declined to take on such cases during the five years the case was pending. 7-19-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, JULY 19, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, JULY 19, 2005:

ATTORNEYS
IN RE MORELL
New Jersey Supreme Court, D-23, July 19, 2005. (15 pages). Facts-on-Call Order No. 92584

An attorney who falsely told his client that a complaint had been filed and that a settlement had been reached was disbarred because his conduct involved dishonesty, fraud, and deceit and reflected his unfitness to practice law.

POST-CONVICTION RELIEF
STATE v. ARTHUR
New Jersey Supreme Court, A-71, July 19, 2005. (65 pages). Facts-on-Call Order No. 92585

The defendant did not receive ineffective assistance of trial counsel at his prosecution for the sale of cocaine, even though counsel did not call a witness who had identified himself to counsel as the seller, did not visit the scene of the sale, did not interview potential defense witnesses before trial, and did not call other proposed defense witnesses. Justice Albin dissented.

THE SUPREME COURT has announced that it will release an opinion in STATE v. HRYCAK, A-18, on July 20, 2005. The issue on appeal in Hrycak addresses whether the defendant should be treated as a second-time offender for driving while intoxicated on her third conviction for that offense because her first conviction was uncounseled.



APPROVED FOR PUBLICATION
EMPLOYMENT LAW
SINGER v. BEACH TRADING CO., INC.
Appellate Division, A-1617-04T5, approved for publication July 19, 2005. (21 pages). Facts-on-Call Order No. 92586

As a matter of first impression, an employer can be held liable to a former employee for the negligent misrepresentation of the former employee’s work history when providing employment references (1) if the inquiring party clearly identifies the nature of the inquiry, (2) if the employer voluntarily responds to the inquiry and unreasonably provides false or inaccurate information, (3) if the person who provides the inaccurate information is acting within the scope of his or her employment, (4) if the recipient of the inaccurate information relies on its accuracy to support an adverse employment action against the former employee, and (5) if the former employee suffers quantifiable damages that were proximately caused by the negligent misrepresentation.

NOT APPROVED FOR PUBLICATION
NEGLIGENCE
KASZYCKI v. HIDDEN VALLEY RESORT
Appellate Division, A-6008-03T5, July 19, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18259

Judgment of $350,000 plus prejudgment interest for the plaintiff skier after a jury found the skier 30 percent liable and the defendant skiing facility 70 percent liable for the skier’s injury affirmed; the skier fractured his jawbone and lost eight teeth after one of his skis got caught on an exposed rock on a ski trail; contrary to the facility’s arguments on appeal, a new trial was not warranted based on (1) the speed with which the jury reached its verdict, (2) the use during the summation of the skier’s attorney of items that were not received into evidence, (3) the skier’s placement of his lack of medical insurance before the jury or his use of that fact to garner sympathy, (4) the trial court’s comments during its instructions to the jury, or (5) the trial court’s failure to issue a limiting instruction about the testimony of the skier’s expert and the pictures that the expert offered in relation to an inspection conducted more than one year after the accident.

REAL PROPERTY
ELKINS v. UNION CAMP CORP.
Appellate Division, A-5550-02T1, July 19, 2005, not approved for publication. (20 pages). Facts-on-Call Order No. 18258

Summary judgment for the defendant real estate owner in an action for the return of a deposit and for breach of contract affirmed; the plaintiff signed a contract to buy 23,000 acres in Florida from the defendant; the contract stated that the initial $50,000 deposit would be forfeited if closing did not take place by a set date; when the plaintiff did not pay the “second deposit” required by the contract, the defendant kept the $50,000; the defendant’s pleadings were suppressed for failure to answer interrogatories, and a judgment was entered for the plaintiff; the trial court later vacated the judgment and dismissed the complaint after applying the Florida statute of limitations; because the plaintiff did not advise the defendant of its failure to comply with the discovery request or of the suppression motion, there was no basis to disturb the vacation of the suppression and the resulting judgment; pursuant to the contract, the Florida statute of limitations governed.

DRUNK DRIVING
STATE v. RICH
Appellate Division, A-683-04T5, July 19, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18257

Conviction and sentence for driving while intoxicated reversed, but conviction for failure to keep to the right affirmed; the State failed to establish beyond a reasonable doubt that the defendant was driving “while” intoxicated; the defendant conceded that he was intoxicated when the police officers found his vehicle stopped on the side of the road after he struck the left curb and flattened the front driver’s side tire, but he asserted that he drank four or five shots of vodka after his operation ceased but before the officers arrived; contrary to the trial court’s finding that this fact was “irrelevant,” the consumption of the vodka was “critical” because the vodka contributed to the defendant’s “state of intoxication” that was observed by the officers; the evidence did not support the trial court’s finding that the defendant was intoxicated from consuming two glasses of wine at his wife’s house earlier in the evening; contrary to the defendant’s assertion, the State proved that he failed to keep to the right.

MEDICAL MALPRACTICE
PEEK v. COOPER HOSPITAL/UNIVERSITY MEDICAL CENTER
Appellate Division, A-1799-03T2, July 18, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18254

Final judgment after a jury trial for the plaintiff patient in a medical malpractice action affirmed; the patient’s right leg was amputated below the knee; the patient’s expert testified that only the patient’s foot would have required amputation if the defendant vascular surgeons had complied with the accepted standards; contrary to the surgeons’ arguments on appeal, (1) the expert’s opinion that the first surgeon deviated from the accepted standards when he failed to order an arteriogram was competent and was not a net opinion and (2) the trial court properly denied the first surgeon’s motion for judgment at the close of the patient’s case because the evidence was sufficient to support a finding that the first surgeon was negligent.

ARBITRATION
COHEN v. CITY OF ENGLEWOOD
Appellate Division, A-1118-04T2, July 18, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18253

Order confirming an arbitration award and striking the plaintiff homeowner’s demand for a trial de novo on timeliness grounds affirmed; the homeowner built a deck without obtaining the required approvals from either the defendant municipality or the defendant homeowners’ association; instead of removing the deck and obtaining the approvals, the homeowner filed a lawsuit; at the ensuing arbitration, the arbitrator ruled that the homeowner “is not given an award”; the homeowner filed a timely demand for a trial de novo under Rule 4:21A-6(b)(1), but the defendants were not served with that demand within the 30-day time limit because the secretary for the homeowner’s attorney forgot to mail it; the unexplained lapse of memory did not constitute the “good cause” required to relax the time requirements of Rule 4:21A-6(b)(1).

HUSBAND AND WIFE
LEPKOWSKI v. LEPKOWSKI
Appellate Division, A-4168-03T1, July 18, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18252

Post-divorce-judgment order that reduced the defendant ex-husband’s child support and limited-duration alimony obligations affirmed; the ex-husband moved in March 2002 to reduce his obligations due to changed circumstances after he lost his job that paid $89,000 per year; the trial court reduced the alimony obligation from $250 to $125 per week for the period from March 2002 to September 2002, when it expired; the child support obligation for that same period was reduced from $119 to $44 per week, and it was fixed at $30.80 per week for the future; the trial court found the ex-husband’s lack of proofs about his present income to be “troublesome,” and it calculated the future child support obligation based in part on $50,000 in annual income imputed to the ex-husband; the ex-husband’s arguments on appeal lacked merit, and the record supported the trial court’s findings.

REAL PROPERTY
GOODSON v. ANCIENT ACCEPTED SCOTTISH RITE (Inc.), VALLEY OF TRENTON
Appellate Division, A-4928-02T1, July 18, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18255

Final judgment after a jury trial that dismissed the plaintiff buyers’ complaint against the defendant real estate agents and that awarded the agents $24,000 on their counterclaim for a commission affirmed; the action arose from the buyers’ failed attempt to purchase one tract and their purchase of another tract; the jury found that the agents were not negligent and were not liable on the buyers’ other claims, which sounded in tort and contract; contrary to the buyers’ arguments on appeal, (1) the submission to the jury of the question of the defendant seller’s negligence, even though the buyers never sued the seller for negligence, was not reversible error, (2) the issue of any error resulting from the submission to the jury of the question of the seller’s liability after the seller was granted summary judgment was moot, (3) the failure to include the buyers’ requested jury instruction about construing any ambiguities in the buyer-broker agreement against the drafter was not plain error, and (4) the trial court did not abuse its discretion by barring the cross-examination of one agent on a collateral issue.


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