NEW JERSEY LAWYER

DAILY BRIEFING      07/22/2005


News Briefs

GROUP LOSES BATTLE TO REVERSE ESPINOSA’S JUDICIAL APPOINTMENT: AS EXPECTED,
Mercer County Judge Linda R. Feinberg has dismissed a suit that likely was dead in the water from day one. The action sought to overturn the judicial appointment of Marianne Espinosa because of an alleged procedural error by the Senate Judiciary Committee. The judge found the Senate panel has a right to violate its own procedures when it deems necessary, according to Leon J. Sokol, who represented Senate Democrats in the suit that claimed the committee took up her nomination without five days’ notice of its June 27 hearing. Espinosa was confirmed by the full Senate to sit in Union County. The suit said the committee tried to prevent testimony against Espinosa, whose previous stint as a Morris County judge ended when that county’s then-senior senator, John H. Dorsey, blocked her bid for tenure. “We still feel it was outrageous for the legislature to ignore the public and not take any comment,” said the complainants’ attorney, David Perry Davis of Princeton. But, he said, the suit still served a purpose because “we focused the public’s attention on the issue.” 7-21-05

CROOKED POLS LOSING STATE PENSIONS
The state Public Employees Retirement System is clearly not in the business of giving free rides to those convicted of crimes. In its latest moves, the system’s board reduced from $35,000 to $6,000 the annual pension of former Essex County Executive James Treffinger, and took away four years’ pension credit earned by a former Paterson city engineer. Treffinger pleaded guilty to mail fraud and obstructing justice, and served 13 months in prison after being indicted on allegations that while county executive, he extorted $15,000 in illegal contributions from his 2000 U.S. Senate campaign fund. Former Paterson engineer Nicholas Giella is serving three months in prison for accepting a gift from a company while it was seeking a contract from that city. In May, the board stripped a $46,000 pension from former Hudson County Executive Robert Janiszewski and suspended pension payments to former Hoboken Mayor Anthony Russo, who both got prison terms for taking kickbacks. 7-21-05

SEX-OFFENDER REGISTRATION SPARKS CONCERN IN ATLANTIC COUNTY
The outrage of a Galloway Township community over a convicted sex offender who moved to their neighborhood from New York has sparked concern over how the state’s sex-offender registry handles out-of-staters who relocate here. Atlantic County Prosecutor Jeffrey S. Blitz said his office began discussing the registration system after residents complained their new neighbor was convicted in New York and classified as a high risk to re-offend, but hasn’t yet been added to the state registry. Assemblyman Kirk Conover (R-Atlantic) said the system allows pedophiles to “state shop” when deciding where to live. 7-21-05

NORTH CAROLINA DMV CRACKS DOWN ON NEW JERSEY’S ILLEGAL ALIENS
Amid reports that illegal immigrants living in New Jersey are traveling by the busload to North Carolina to secure driver’s licenses, that state’s motor vehicles division is tightening its licensing procedures. A division spokesman there said the unit has begun using face-recognition technology, restricted what it accepts as identification and is training officers to spot false documents. Passaic Police Captain John Kanson, whose community reportedly houses a large number of the traveling aliens, said they find it easier to get licensed in North Carolina. 7-21-05

FIREMAN USES DEPARTMENT TRUCK TO WATER HOME LAWN
Here's one that's not exactly water under the bridge. Captain Kevin Shaffer of the Indianapolis Fire Department has agreed to pay the department $120 for using a department fire truck to water his lawn. He’s also been reprimanded and ordered to pay 35 cents for each gallon he used for gardening rather than follow department custom and use city facilities to purge water from the truck after a training exercise. “He said he didn’t want to waste it. If he didn’t want to waste it, he could have watered the department’s lawn,” said Deputy Chief Pat Donoghue. 7-21-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, JULY 21, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JULY 21, 2005:

MEDICAID
H.K. v. STATE OF NEW JERSEY, DEPARTMENT OF HUMAN SERVICES, DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
New Jersey Supreme Court, A-90, July 21, 2005. (30 pages). Facts-on-Call Order No. 92588

The transfer of real property for less than fair market value to the transferor’s heirs did not occur within the 36-month look-back period that pertained to the transferor’s later application for Medicaid assistance because the transfer occurred on the date that the deed to the property was executed, conveyed to the heirs, and accepted by them, which was almost 45 months before the application, rather than on the date that the deed was recorded, which was about 20 months before the application.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JULY 22, 2005.



APPROVED FOR PUBLICATION
INSURANCE
JUAREZ v. J.A. SALERNO & SONS
Appellate Division, A-1100-03T5, approved for publication July 21, 2005. (6 pages). Facts-on-Call Order No. 92589

The recent holdings in DiProspero v. Penn and Serrano v. Serrano — which eliminated the serious-life-impact standard in verbal threshold cases under the Automobile Insurance Cost Reduction Act of 1998 — had no bearing on the grant of summary judgment for the defendants in this case because the plaintiff had not made a prima facie showing of objective indicia of a serious injury.

INSURANCE
FEREJOHN v. VACCARI
Appellate Division, A-243-04T5, approved for publication July 21, 2005. (11 pages). Facts-on-Call Order No. 92590

The son of the named insureds under a personal automobile liability policy was a permissive user and was entitled to liability coverage for an accident that occurred on a public street, even though he did not have a driver’s license and was allowed by the named insureds to drive the car only in the driveway.

PUBLIC CONTRACTS
CLEAN EARTH DREDGING TECHNOLOGIES, INC. v. HUDSON COUNTY IMPROVEMENT AUTHORITY
Appellate Division, A-6946-03T2, approved for publication July 21, 2005. (16 pages). Facts-on-Call Order No. 92591

The contract between the defendant Hudson County Improvement Authority and the defendant dredging company that gave the dredging company the right to use a parcel of land for a processed dredge facility was a lease and therefore was not subject to the Local Public Contracts Law. The Improvement Authority is not subject to the Local Lands and Buildings Law.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
SCHISSEL v. ESTATE OF LEWIS
Appellate Division, A-1102-04T2, July 21, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18271

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA and denial of the plaintiff’s motion for reconsideration affirmed; under the recent decision of DiProspero v. Penn, the plaintiff was required to show that he had sustained a qualifying injury as a result of the accident; however, the plaintiff failed to present competent evidence of a causal connection between the accident in this case and an aggravation of his pre-existing degenerative disc condition; the report from the plaintiff’s doctor about whether the accident had aggravated the plaintiff’s condition “was conclusionary and amounted to no more than a net opinion.”

TORT CLAIMS ACT
YAMPOLSKIY v. RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY
Appellate Division, A-3101-04T2, July 21, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18270

Dismissal of the plaintiff’s negligence complaint against the defendant Rutgers University because he failed to file a timely notice of claim under the Tort Claims Act affirmed; the plaintiff’s nose was broken on October 16, 1996 when he was kicked in the head while practicing for a martial arts tournament in the University’s gymnasium; on September 15, 1997, a neurologist found that the plaintiff likely was suffering from “post-traumatic schizophrenia like disorder,” and the diagnosis was confirmed on November 3, 1997; the plaintiff served his notice of claim on December 12, 1997, which was one year and two months after the incident; the plaintiff’s claim accrued on the date that he was injured and sought medical treatment for his injury, and the notice of claim was untimely; contrary to the plaintiff’s assertion, the trial court did not err by refusing to apply the discovery rule to delay the accrual of his obligation to provide a notice of claim.

DRUNK DRIVING
STATE v. WASH
Appellate Division, A-6366-03T2, July 21, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18272

Conviction for driving while intoxicated affirmed; a municipal police detective on his way to a deposition observed the defendant driving at a high rate of speed, drifting in and out of an adjacent lane, and otherwise driving erratically; after the detective pulled the defendant to a stop, he had a State Trooper take over so that he could continue to the deposition; when the defendant performed poorly on alphabet-reciting and finger-touching tests, a second State Trooper arrived at the scene and performed additional field sobriety tests that led to the defendant’s arrest; contrary to the defendant’s arguments, the duration and scope of the pre-arrest investigation were not excessive and did not violate his Fourth Amendment rights, and probable cause supported his arrest.

INSURANCE
HARTFORD INSURANCE GROUP v. TRAVELERS INSURANCE
Appellate Division, A-5028-03T5, July 20, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18266

Summary judgment for the defendant insurers in a declaratory judgment suit by the plaintiff insurer affirmed; the plaintiff sought to recover apportioned shares of legal fees and costs that it had incurred in defending a subcontractor that it had insured under a series of comprehensive general liability policies in litigation involving construction deficiencies; the defendants allegedly had issued insurance policies to the subcontractor during the relevant time periods; the trial court properly determined that there was no claim for consequential damages in the construction litigation that could give rise to a duty to defend on the part of the defendants; the claims in the construction litigation sought only remediation.

WORKERS’ COMPENSATION
HARRIS v. MITCHELL
Appellate Division, A-182-04T5, July 20, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18267

Dismissal on remand of the plaintiff’s personal injury action against the defendant tractor lessor and the defendant employee of the lessor affirmed; the plaintiff, who was loading a trailer that was attached to the tractor, fell when the employee moved the tractor; the plaintiff recovered workers’ compensation benefits from his employer, which was the lessee of the tractor; after a plenary hearing on remand, the trial court determined that the defendants were “special employees” of the lessee when the accident occurred and that the plaintiff’s action therefore was barred by N.J.S.A. 34:15-8; the trial court’s findings and its conclusion that the defendants were special employees of the lessee under Kelly v. Geriatric & Med. Servs., Inc. were supported by the record.

ADMINISTRATIVE LAW
BRAHIN v. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION
Appellate Division, A-2783-03T1, July 20, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18268

Transfer of the plaintiff landowner’s declaratory judgment action to the Appellate Division under Rule 2:2-3(a)(2) reversed and remanded for an order dismissing the action; the landowner sought a permit to develop a fast-food restaurant; the action was filed after the defendant Department of Environmental Protection did not issue the permit “in the ordinary course,” and the trial court granted the DEP’s transfer motion; the transfer was improper because the DEP had not made a final decision on the permit application and because a full administrative record was needed before the landowner’s right to develop could be adjudicated; the record did not contain any statements about the DEP’s position.

TAXATION
MURPHY v. TOWNSHIP OF GREEN
Appellate Division, A-5068-03T1, July 20, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18269

Tax Court order that denied the plaintiff residential property owner’s application for relief under the Freeze Act for tax years 2002 and 2003 affirmed substantially for the reasons expressed by the Tax Court; the application was filed after the owner’s appeals of the defendant Township’s tax assessments for 2000, 2001, 2002, and 2003 were resolved in Tax Court proceedings; the Tax Court properly determined (1) that the assessment for neither 2000 nor 2001 could serve as a base-year assessment under the Freeze Act because the Tax Court did not make determinations of value for those years, (2) that the owner had waived his right to Freeze Act relief based on the 2002 assessment because he had proceeded to trial on that assessment, and (3) that relief based on the 2002 assessment also would be both moot and statutorily prohibited.


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