NEW JERSEY LAWYER

DAILY BRIEFING      07/21/2005


News Briefs

CHILDREN’S RIGHTS ADVOCACY GROUP DUBIOUS OF DYFS PROGRESS
Children’s Rights Inc., the advocacy group that sued the Division of Youth and Family Services for mismanagement, is dubious about progress by DYFS despite a report the agency is meeting case load reduction goals prescribed in the suit’s settlement. “Our concerns are escalating,” said Children’s Rights executive director Marcia Robinson Lowry in response to Human Services Commissioner James Davy’s report that DYFS over the past year reduced its average worker case loads 28 percent. Lowry is waiting for further assessment of DYFS due later this summer from the New Jersey Welfare Panel, a group of national experts overseeing the state’s compliance with the 2004 settlement. Case load reduction was among several improvements stipulated. 7-20-05

COLLECTION AGENCIES MUST PAY $10.2 MILLION FOR STRONG-ARMING
The operators of several defunct New Jersey collection agencies have been ordered to pay $10.2 million to the government, which accused them of harassing consumers and threatening them with arrest if they didn’t pay. Owner Barry Sussman, and the companies’ attorney, Charles T. Hutchins, also have been banned from performing debt-collection work, according to the order from chief U.S. District Judge John W. Bissell in Newark. The Federal Trade Commission in 2003 sued Sussman, Hutchins and Sussman’s companies — Check Investors, operating as National Check Control; Check Enforcement, operating as Goldman Check Systems; and Jaredco, operating as Goldman & Co. The complaint charged the Secaucus companies with violating the Fair Debt Collection Practices Act. 7-20-05

ESSEX COURTHOUSE PLAZA GETTING A FACELIFT
Trips to the Essex County Courthouse may soon become more enjoyable. The county on Monday is scheduled to start work on a $1.6 million makeover of the courthouse plaza. A bronze statue of Lady Justice, shade trees and a fountain are among the enhancements slated for an area that County Executive Joseph DiVincenzo Jr. has acknowledged “is an eyesore.” 7-20-05

COLTS NECK WANTS NEIGHBORS TO BEAR COSTS OF THEIR CORRUPTION
If crooked politicians cost a township money, it’s that township’s problem and not the state’s, the Colts Neck Township Committee has said. The all-Republican body adopted a resolution opposing two Democratic assemblymen’s proposal to supply state aid to neighboring Marlboro and other municipalities where local government corruption resulted in more land development than the towns could support without raising local taxes. “You get rewarded for being part of an atmosphere of corruption. I find it very disturbing,” said Committeewoman Lillian Berry. Monmouth Democratic Assemblymen Michael J. Panter and Robert L. Morgan have asked acting Gov. Richard J. Codey to find some way to assist Marlboro, where new construction tainted by corruption could cost the town $10 million. They’ve also sponsored A-4368, the Public Corruption Civil Recovery Act, that would require extra costs to such towns be billed to the corrupt public officials, and that developers involved pay into an open-space fund. 7-20-05

BATTLE UNFOLDING OVER FEDERAL PRESS-SHIELD LAW
The Bush administration has come out solidly against proposed legislation in Congress that would establish a national shield law for journalists to protect their confidential sources’ identity — except in matters of national security. A deputy attorney general had told the Senate Judiciary Committee that such a federal shield law would undermine the Justice Department’s efforts “to effectively enforce the law and fight terrorism” and is “bad public policy.” New Jersey and 30 other states have shield laws, but federal courts aren’t bound by them. It’s an issue where Republicans may part company with the Bush administration. Indiana Republican Sens. Richard Lugar and Mike Pence introduced the bill, now before the Judiciary Committee. 7-20-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, JULY 20, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, JULY 20, 2005:

DRUNK DRIVING
STATE v. HRYCAK
New Jersey Supreme Court, A-18, July 20, 2005. (24 pages). Facts-on-Call Order No. 92587

An uncounseled conviction for driving while intoxicated may not be used to enhance the period of incarceration for a subsequent DWI offense. State v. Laurick reaffirmed.

THE SUPREME COURT has announced that it will release an opinion in H.K. v. NEW JERSEY DIVISION OF MEDICAL ASSISTANCE, A-90, on July 21, 2005. The issue on appeal in H.K. addresses whether a 71-year-old woman’s application for Medicaid benefits was properly rejected because she transferred her home to her three children within the 36-month “look-back period” under N.J.A.C. 10:71-4.7(a).



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, JULY 20, 2005.

NOT APPROVED FOR PUBLICATION
JURISDICTION
SHARMA v. HERTZ CORP.
Appellate Division, A-5802-03T3, July 20, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18265

Dismissal of the plaintiff’s declaratory judgment action based on the doctrine of forum non conveniens and principles of comity affirmed; the plaintiff, who was an Oklahoma resident, rented a car from the defendant rental car company at Bradley International Airport in Connecticut; the rental car was registered in New Jersey and was covered by a New Jersey certificate of self-insurance; the plaintiff was involved in an automobile accident in New Haven, Connecticut; the plaintiff eventually filed a declaratory judgment action for coverage against the rental car company in New Jersey, but the real party in interest was the plaintiff’s automobile insurer; the action lacked “any significant factual nexus” with New Jersey, and the trial court did not abuse its discretion by dismissing the action based on forum non conveniens and comity.

EMPLOYMENT LAW
DEAS v. ST. MARY HOSPITAL
Appellate Division, A-6433-03T5, July 20, 2005, not approved for publication. (18 pages). Facts-on-Call Order No. 18264

Summary judgment for the defendant employer hospital affirmed in part, reversed in part, and remanded; the plaintiff, who was a nurse at the hospital, complained that a doctor was sexually harassing her; the hospital terminated her three months later, but it claimed that the termination was due to her poor care of a patient, which had led to a medical malpractice action; regarding the claims of retaliation, gender discrimination, and hostile work environment under the Law Against Discrimination, (1) the plaintiff failed to present evidence to support a finding of a causal connection between her complaint about the doctor and her termination, (2) the undisputed facts provided legitimate reasons for her termination, and (3) the hospital was not vicariously liable for the conduct of the independent-contractor doctor; remand was needed because the trial court did not address the assault and battery claims.

HUSBAND AND WIFE
HEDDEN v. HEDDEN
Appellate Division, A-4645-03T3, July 20, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18263

Post-divorce-judgment order that granted the plaintiff ex-husband’s motion to compel the distribution of his share of the proceeds from the sale of the marital home and that denied the defendant ex-wife’s cross-motion to reform the judgment of divorce affirmed; the home was encumbered by two mortgages, and the parties’ defunct business owed $10,000 in taxes; the ex-wife contended that she was entitled to reformation because she believed that the ex-husband was required to pay the mortgage and taxes on the home until it was sold, but that contention was properly rejected because it was not supported by the parties’ property settlement agreement or the transcript of the placement of the PSA on the record; the ex-husband’s position that the ex-wife was not entitled to a credit related to the tax debt was “sound.”

ATTORNEYS
SUSMUTH v. DENBEAUX
Appellate Division, A-7018-03T3, July 19, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18260

Summary judgment for the defendant attorneys in a legal malpractice action based on the six-year statute of limitations affirmed; one attorney represented the plaintiff on her unsuccessful motion to require her ex-husband to supply proof that he had named her as the beneficiary of life insurance policies, as required by the divorce judgment; in response to the plaintiff’s February 12, 1996 letter, the first attorney declined to appeal and recommended that she retain another attorney; the plaintiff retained another attorney, but no further action was taken to enforce the divorce judgment; the plaintiff learned in October 2001 that the ex-husband had not changed the beneficiary designations before he died; the malpractice action was filed on January 20, 2004 and alleged that the defendants failed to advise the plaintiff of her options in pursuing the change of beneficiary designations; the record demonstrated that the plaintiff knew of those options by February 12, 1996, and her legal malpractice action had accrued before she learned of the ex-husband’s death.

APPELLATE PROCEDURE
IN RE FOSTER
Appellate Division, A-6678-03T3, July 19, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18261

Appeal from a Department of Personnel letter decision that advised the petitioner former Senior Right of Way Negotiator that she had exhausted her administrative remedies dismissed as moot; the petitioner sought reappointment after she was removed from her position, which led to an appeal to the Appellate Division; while that appeal was pending, the petitioner sought appointment as a Right of Way Negotiator; the petitioner appealed after she was removed from the eligible list for Right of Way Negotiator, which prompted the letter decision; the letter decision correctly noted that the issue of the petitioner’s removal from the eligible list would be reopened if her appeal before the Appellate Division was successful; the appeal from the letter decision was dismissed because the petitioner was not successful on her appeal before the Appellate Division and because it was not taken from a final administrative decision.

CONTRACTS
KOEHLER v. ULTIMATE AUTOMOTIVE INDUSTRIES, INC.
Appellate Division, A-4469-03T1, July 19, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18262

Judgment after a jury trial for the plaintiff employee on his claim for unpaid compensation against the defendant employer affirmed and rejection of the employee’s unjust enrichment claim against the defendant estate that owned all of the shares of the employer remanded for a new trial; as to the unjust enrichment claim, the employee sought to recover $140,000 that he had paid in cash to the decedent and $96,000 in sweat equity; a new trial was required due to the legal and factual errors that pervaded the trial court’s jury instructions and interrogatories; as to the unpaid compensation claim, the award was proper because the plaintiff proved by a preponderance of the evidence that he had conferred a benefit on the employer without receiving remuneration for his services.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
C.P. v. BERLIN BOROUGH BOARD OF EDUCATION
OAL Docket Nos. EDS 509-05 and EDS 572-05, Agency Docket Nos. 2005 9754 and 2005 9762, Final Agency Decision: May 19, 2005, released for publication June 22, 2005. By Dubin, ALJ. (5 pages).

The administrative law judge dismissed as moot the petitions by both parties in a dispute arising from the placement of a 10-year-old fourth-grade student. The respondent Board of Education demanded that the student be placed out of district due to his behavioral problems, and the petitioner mother countered that the Board refused to educate the student and that she would never allow the student to be placed out of district. The ALJ observed that the student’s individualized education program would expire on the last day of school in June 2005 and that there were no available hearing dates until late June 2005. The ALJ further noted that the IEP meeting for the student’s 2005-2006 placement was scheduled for May 27, 2005 and that, although the dispute would likely continue, he could not issue a decision on an IEP that did not yet exist and therefore was not ripe for judicial review. Finally, the ALJ determined that it would be better for the student to finish the school year in his placement in in-home instruction.

WORKERS’ COMPENSATION
RICCIARDO v. STROEHMANN/MAIERS BAKERY
Claim Petition No. 2001-7310, Final Agency Decision: April 15, 2005, released for publication June 16, 2005. By Ricciardelli, J.W.C. (12 pages).

The judge of compensation (1) determined that the 57-year-old petitioner bakery worker was totally and permanently disabled and (2) dismissed the Second Injury Fund from the matter. The petitioner twisted awkwardly when he lifted a stack of trays at work, underwent three back surgeries, and never returned to work. Among other things, the petitioner claimed that he was unable to stand or walk for more than 15 minutes without pain, to drive for more than 30 minutes without stopping, and to lift more than 25 pounds. The judge based her disability finding on the testimony of the petitioner and four doctors and on her observations of the “credible” petitioner. The judge concluded that the respondent bakery was not entitled to contribution from the Second Injury Fund because it did not meet its burden of proving that the petitioner had a pre-existing disability.

WORKERS’ COMPENSATION
NEVERS v. CONTINENTAL AIRLINES
Claim Petition No. 2001-7864, Final Agency Decision: March 14, 2005, released for publication June 16, 2005. By Moncher, J.W.C. (8 pages).

The judge of compensation awarded the petitioner 300 weeks of payments based on a reconstructed 40-hour work week for a 50 percent permanent partial disability. While the petitioner was working part time as an airplane loader for the respondent airline, his right leg was crushed by a loading machine. For years, the petitioner had worked both his part-time job and a full-time job as a security guard at a hospital. After the accident, the petitioner stopped working for the airline, was out of work for a year and a half, took a different job at the hospital at a reduced wage, and did not work overtime at the hospital. The judge found (1) that the 35-year-old petitioner had an anxiety state, which was present to the extent of 10 percent, that overlapped his orthopedic disability, (2) that the petitioner could no longer perform the heavy physical labor required by the airline, (3) that there was a permanent reduction in the petitioner’s earning capacity at the airline, (4) that the petitioner had a permanent inability to maximize his earnings at the hospital, and (5) that the petitioner’s wage therefore should be reconstructed to only a 40-hour work week under Kastoris v. South Jersey Publishing Co.


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