NEW JERSEY LAWYER

DAILY BRIEFING      07/25/2005


News Briefs

STATE MEDIATORS SAY $100 HOURLY PAY PROPOSAL TOO MEAGER
Mediators in the state’s court-annexed mediation program may finally be getting paid for their first three hours of service, but many believe the $100 per hour proposal is too low to halt an exodus from the program. “This is a low number. It’s a finger in the dike and while it may stem the flow out somewhat, it’s not going to attract a huge number of new people back to the program,” said Hanan M. Isaacs of Princeton. A Supreme Court panel and another committee comprised of judges both have recommended paying mediators $100 an hour for the first three hours in each case. “I question whether this is too little to make the difference it should make,” said Edward J. Bergman of Bergman & Barrett in Skillman. For a full story, see the July 25 New Jersey Lawyer. 7-22-05

BAR FOUNDATION TRYING AGAIN TO AVOID MOCK-TRIAL CONFLICTS
As a follow-up to the springtime controversy over whether the state champion Torah Academy of Bergen County would, in effect, be barred from the National Mock Trial competition, the New Jersey State Bar Foundation has asked the national organization to continue offering an adjusted competition schedule, as occurred in May, to debating teams whose religious beliefs preclude them from competing on Saturdays. Saying Torah Academy’s competitors in North Carolina “were extremely gracious and cooperative” by agreeing to an amended schedule, Bar Foundation President John J. Henschel’s letter to the national governing board asks it keep open such an option. Other states’ coordinators, though, urged a policy prohibiting scheduling accommodations. 7-22-05

NAME GAME FOR THOSE IN SHAME
Three years after it stripped Robert E. Brennan’s name from a building because the once-esteemed banker was convicted of money-laundering, Seton Hall University’s board of regents now may have to decide on the moniker of a building named after L. Dennis Kozlowski, a 1968 Seton Hall graduate better-known as the former Tyco International chief executive convicted of grand larceny of more than $150 million. Seton Hall spokesman Thomas White said the board won’t publicly discuss the issue until its next scheduled meeting, Sept. 23, adding, “At this stage, we don’t know how the board will act, if at all.” Shena Collum, the student body president, said, “Seton Hall puts a great deal of emphasis on ethics in society, and I don’t think Mr. Kozlowski is an example to follow. It bothers me to keep his name on one of our buildings.” 7-22-05

NJ’S VIOLENT-CRIME DROP LAGS BEHIND NORTHEAST
As crimes like murder, rape and robbery continued to decline nationwide last year, so did those rates in New Jersey. Attorney General Peter C. Harvey underscored a 2 percent drop here, slightly better than the 1.7 percent falloff nationally, but not as good as the 2.6 percent throughout the Northeast. According to the New Jersey State Police, the overall New Jersey crime rate for violent and nonviolent crime was down 4 percent. Generally mirroring national trends, violent crime dropped 5 percent in the state’s urban areas and 3 percent in suburbs, while rising 4 percent in rural areas. Bias-based offenses were up 37 percent, and weapons offenses and sexual assaults were 4 percent higher. On the reverse, murders dropped 3 percent and domestic violence offenses 2 percent. The state report is at njsp.org/info/ucr2004/index.html.

MOVES TO REQUIRE SCREENING ASBESTOS CLAIMANTS DRAW ATLA IRE
The Association of Trial Lawyers of America is outraged at movement by state legislatures toward laws that set medical criteria for plaintiffs in cases alleging exposure to asbestos. Carlton Carl, spokesman for ATLA in Washington, called the measures “the equivalent of legislators playing doctor and also the equivalent of saying someone who had an operation and got HIV through a blood transfer isn’t sick and hasn’t been injured.” Twenty members of the Pennsylvania legislature are supporting a bill that would require asbestos claimants prove actual impairment before suing. Similar measures already are law in Florida, Georgia and Ohio, and slated to be enacted in Texas in September. To some extent, the bills respond to allegations of widespread abuse in asbestos claims filings that emerged during U.S. Senate Judiciary Committee hearings in recent years. Carl said, “We’ve always preferred letting judges and juries make these decisions, not politicians and insurance companies.” 7-22-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, JULY 22, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JULY 22, 2005.

THE SUPREME COURT has announced that it will release an opinion in GERETY v. ATLANTIC CITY HILTON CASINO RESORT, A-33, on July 25, 2005. The issue on appeal in Gerety addresses whether the defendant employer’s policy that limited medical leaves to 26 weeks for any illness violated the Law Against Discrimination as to the plaintiff employee, who could not return to work after 26 weeks due to medical problems that were related to her pregnancy.



APPROVED FOR PUBLICATION
HUSBAND AND WIFE
BURSZTYN v. BURSZTYN
Appellate Division, A-3169-02T1, approved for publication July 22, 2005. (21 pages). Facts-on-Call Order No. 92592

Trial courts in New Jersey have discretionary authority to compel the parties in divorce proceedings to file joint tax returns. However, the exercise of that authority generally should be avoided due to the potential liability to which the parties would be exposed and the existence of other means to compensate the parties for the adverse tax consequences of filing separately.

SEARCH AND SEIZURE
STATE v. PITCHER
Appellate Division, A-4871-03T1, approved for publication July 22, 2005. (16 pages). Facts-on-Call Order No. 92593

An officer who stops a car in reliance on Division of Motor Vehicle records that inaccurately report that the driver’s license of the car’s owner is suspended need not be deemed to have acted unreasonably or without adequate cause to intrude upon rights protected by the Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution. In this case, the officer’s reliance on DMV records was objectively reasonable, and his actions were consistent with constitutional restrictions on search and seizure.

NOT APPROVED FOR PUBLICATION
CIVIL PROCEDURE
SANCHEZ v. CLOVERLAND LANDSCAPE CO., INC.
Appellate Division, A-4747-03T5, July 22, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18279

Dismissal of the plaintiff employee’s complaint against the defendant employer affirmed in an action for injuries sustained by the plaintiff while operating a lawnmower; following arbitration, only the plaintiff’s claim against the lawnmower manufacturer should have been dismissed; however, due to an administrative error, the claim for spoliation of evidence against the employer also was dismissed; the claim against the employer was erroneously dismissed, and the plaintiff’s 10-month delay to file a motion to reinstate was reasonable under the circumstances; nonetheless, the claim against the employer would not have survived a motion for summary judgment because there is no separate cause of action for spoliation of evidence in New Jersey.

CIVIL PROCEDURE
BEDNARSKI v. PENSO
Appellate Division, A-3302-03T5, July 22, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18280

Summary judgment for the defendant dismissing the plaintiff’s automobile negligence complaint based on the two-year statute of limitations affirmed; the plaintiff argued that, although the initial impact to her vehicle and the initial onset of pain occurred on the date of the accident, the injury that established the elements of N.J.S.A. 39:6A-8a was not discoverable until at least one month later; the discovery rule did not apply in this case because the plaintiff knew that she was injured on the date of the accident; the fact that she did not discover until later that her injury was significant enough to satisfy §39:6A-8a did not change that result.

CIVIL PROCEDURE
VELAZQUEZ v. K-MART CORP.
Appellate Division, A-61-04T1, July 21, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18275

Dismissal of the plaintiff’s premises liability complaint on statute of limitations grounds and denial of her motion for reconsideration affirmed substantially for the reasons expressed by the trial court; the plaintiff fell on a common walkway in front of the defendant store on June 13, 2001, and she filed a complaint on May 29, 2002 naming the store and the fictitiously named defendants who owned, operated, maintained, built, renovated, and repaired the store; on July 9, 2003, the trial court granted the plaintiff’s motion to file an amended complaint naming three of the fictitious defendants and ordered the plaintiff to file and serve the amended complaint by July 24; the plaintiff mailed the amended complaint on July 25, it was filed on July 29, and none of the defendants was served before August 20; the trial court properly granted the recently named defendants’ motion to dismiss (1) because the amended complaint did not relate back to the date of the original complaint where the plaintiff did not produce evidence of due diligence to determine the defendants’ identities and (2) because the plaintiff could not rely on the doctrine of substantial compliance.

PROFESSIONAL MALPRACTICE
TORTORELLO v. SADIQ
Appellate Division, A-1834-03T3, July 21, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18274

Dismissal in a dental malpractice action of the plaintiff patient’s informed consent claim at the close of the evidence and dismissal of her deviation claim after a jury verdict of no cause of action affirmed; the patient claimed that she suffered an infection after undergoing root canal surgery and had to have the tooth removed; contrary to the patient’s arguments on appeal, (1) there was no basis to reverse the dismissal of the informed consent claim because the patient knew of the dangers of root canal surgery before the surgery began and because the defendant dentist told her about the “risks” of the surgery and what could “go wrong” and (2) the trial court did not abuse its discretion by allowing cross-examination of the patient’s expert about the impact of the patient’s medical records on his opinion or by excluding testimony by the expert about malpractice based on a possible “furcation” perforation.

EMPLOYMENT LAW
HAFFY v. HACKENSACK UNIVERSITY MEDICAL CENTER
Appellate Division, A-4555-02T1, July 21, 2005, not approved for publication. (41 pages). Facts-on-Call Order No. 18278

Dismissal of the plaintiff’s action under the Conscientious Employee Protection Act at the close of his case affirmed; the plaintiff was the former director of the defendant hospital’s biomedical engineering department; based on his belief that there should be no electromagnetic interference with medical devices, the plaintiff objected to a change in the hospital’s policy that allowed a greater use of portable electronic devices; the plaintiff was terminated when the defendant proponent of the change became his direct supervisor; although the trial court made erroneous evidentiary rulings, dismissal was proper because the entire record — including the documentary evidence that the trial court excluded — did not establish that the plaintiff’s position was consistent with a clear mandate of public policy; the trial court did not err by denying the defendants’ motion for attorney’s fees.

PUBLIC EMPLOYMENT
BOARD OF EDUCATION OF THE BOROUGH OF ALPHA v. ALPHA EDUCATION ASSOCIATION
Appellate Division, A-155-04T5, July 21, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18273

Dismissal of the plaintiff Board of Education’s verified complaint that sought to vacate an arbitration award reversed; the award resulted from a grievance filed by the defendant education association under the parties’ collective bargaining agreement and required the Board to pay health insurance benefits to certain part-time employees; the grievance was not timely filed under the CBA because the association chose instead to raise the benefits issue in the context of collective bargaining negotiations; the association’s unsuccessful tactical choice did not undermine the enforceability of the CBA’s “otherwise clear contractual terms”; contrary to the association’s argument and the decisions of the arbitrator and the trial court, the continuing violations doctrine did not apply.

ENVIRONMENTAL LAW
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION v. CYCLE CHEM, INC.
Appellate Division, A-1491-03T2, July 21, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18277

Decision of the petitioner Department of Environmental Protection that assessed $29,000 in civil administrative penalties against the respondent hazardous waste companies affirmed; the penalties were assessed for violations of N.J.A.C. 7:26-5.7(a) based on the companies’ failures to supply requested information on two dates and to permit an inspection of used oil drums; contrary to the companies’ arguments on appeal, (1) there was no basis to depart from the general rule that allows warrantless searches of “highly or pervasively regulated industries,” (2) the factual findings underlying the decision were well supported by the evidence, (3) there was no reason to reject the findings that the companies had not complied with reasonable enforcement requests, and (4) the assessment of midlevel penalties was not arbitrary, capricious, or unreasonable.

PARENT AND CHILD
CONOD v. HALL
Appellate Division, A-6973-03T5, July 21, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18276

Post-divorce-judgment order that required the defendant father to pay 44 percent of the college expenses of the parties’ son affirmed; the judgment of divorce provided that both parties would have input about the son’s choice of college, but the son began attending college in September 2000 without the father’s input; the failure to obtain the father’s input did not relieve him of his obligation to contribute to the college expenses (1) where a final restraining order excused the plaintiff mother from communicating with the father about the choice of college, (2) where the son had not had any contact with his father since 1995, and (3) where the father had not obeyed court orders designed to establish visitation and a relationship with the son; the record justified the trial court’s finding that the son could not be penalized for the father’s conduct.


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