NEW JERSEY LAWYER

DAILY BRIEFING      07/05/2005


News Briefs

FOR LAWYERS WITH SCHEDULING CONFLICTS, OLDER CASE GOES FIRST
The Administrative Office of the Courts has issued a directive for resolving attorneys’ scheduling conflicts in civil cases. The general rule is that if lawyers have matters scheduled for trial at the same time in different counties, the older case has priority. Once lawyers recognize there may be a conflict, they must notify the Civil Division manager in each county, as well as all lawyers in the affected cases. If a lawyer or a manager believes there are valid reasons for handling the newer case first, the two managers will make the scheduling decision. If they can't agree, the presiding judge will decide. 7-1-05

JURY AWARDS $3 MILLION FOR BOTCHED SURGERY
An Essex County jury awarded $3 million to a Dumont widow who claimed a botched surgery at University Hospital in Newark killed her husband. The jury apportioned 51 percent of the responsibility to Dr. Thomas Chiodo and the rest to Dr. Raquel Forsythe, a fellow resident, whose failure to properly insert a drainage device during surgery for orthopedic injuries caused William Clark, 40, to choke to death on his vomit, according to plaintiff’s attorney David A. Mazie of Nagel Rice & Mazie in Roseland. The defense attorney in Clark v. University Hospital was Cynthia A. Walters of Budd Larner in Short Hills. The award to Dorothy Clark followed a two-week trial before Judge Stephen J. Bernstein. 7-1-05

STATE OKS ALTERNATIVES TO REHAB PROGRAMS SEEN AS RELIGIOUS
In the face of a lawsuit from a Princeton attorney, the state has agreed to offer alternatives to Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) as support programs for substance abuse in Division of Youth and Family Services matters. The lawyer, David Perry Davis, contended the groups are religious in nature, making it unconstitutional for a court to order someone to attend those sessions. Davis was notified of the change by Attorney General Peter C. Harvey, whose letter said the revision was approved by the judiciary. 7-1-05

AOC TELLS JUDGES TO SET DEADLINES FOR PUBLIC DEFENDER
Concerned about a lingering high backlog rate for post-conviction relief petitions, the Administrative Office of the Courts is directing judges to order the Public Defender’s Office to assign attorneys to these cases within 90 days. The PD’s office says it is taking remedial steps. Assignment judges, including Union County’s Walter R. Barisonek, are hopeful the get-tough move will relieve what they say is a problem. PCR cases had by far the highest backlog rate among all cases for the court year ending June 2004; the AOC reports no improvement since. For a full story, see the July 4 New Jersey Lawyer. 7-1-05

CASINO COUNSEL PEGGED FOR STATE BENCH
One of Atlantic City’s most prominent gaming industry attorneys, Bernard E. DeLury Jr., has been nominated to the Superior Court by acting Gov. Richard J. Codey. DeLury stepped down as general counsel for Caesar’s Entertainment upon its June 13 merger with Harrah’s Entertainment. He is credited with guiding Caesar’s growth into the world’s largest gaming company. Meanwhile, Codey has nominated Englewood attorney and former Bergen County freeholder Linda P. Baer as an administrative law judge, a position she previously held. 7-1-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, JULY 1, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JULY 1, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, JULY 5, 2005.


APPROVED FOR PUBLICATION
LAND USE
K. HOVNANIAN COMPANIES OF NORTH CENTRAL JERSEY, INC. v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION
Appellate Division, A-2787-03T5, approved for publication July 1, 2005. (13 pages). Facts-on-Call Order No. 92564

The plaintiff builder’s complaint was properly dismissed for failure to exhaust administrative remedies and for want of ripeness. Although the complaint was filed as a Mount Laurel builder’s remedy action and also asserted fair housing and constitutional claims, administrative proceedings were required because the plaintiff sought to challenge either a decision by the Department of Environmental Protection to change a stream classification or the proposed revocation of a permit that authorized discharge into the stream.

REAL PROPERTY
KILARJIAN v. VASTOLA
Chancery Division, Somerset County, SOM-C-12081-04, approved for publication June 28, 2005. (8 pages). Facts-on-Call Order No. 92562

The “totally blameless buyer” in a contract for the sale of residential property was denied specific performance because the deterioration of one seller’s health while the contract was pending made it an injustice to insist on performance.

DOMESTIC VIOLENCE
WINE v. QUEZADA
Chancery Division, Family Part, Passaic County, FV-16-764-04, approved for publication June 28, 2005. (7 pages). Facts-on-Call Order No. 92563

In determining whether to award attorney’s fees as compensatory damages to a prevailing plaintiff in a domestic violence case, a court should consider only whether the fees were incurred as a result of the domestic violence and whether they are reasonable; it should not consider the parties’ ability to pay or their financial circumstances.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
ROSANIA-SULLIVAN v. GOODWIN
Appellate Division, A-1612-04T1, July 1, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18176

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA remanded for reconsideration; while the motion court did not rely on the “serious life impact” rationale rejected by the New Jersey Supreme Court’s decision in DiProspero v. Penn, the Appellate Division could not be sure that, in concluding that the plaintiff’s objective medical evidence was deficient, the motion court did not consider and use the “serious injury” element rejected by the Supreme Court in Serrano v. Serrano; thus, the Appellate Division remanded for reconsideration in light of Serrano; on remand, the focus should be whether the record, when viewed favorably for the plaintiff, demonstrates that the plaintiff sustained “a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement” as a result of the accident, and the inquiry should be whether the plaintiff’s injury affected a “body part or organ, or both [which] has not healed to function normally and will not heal to function normally with further medical treatment.”

TORT CLAIMS ACT
OPAUSKI v. COUNTY OF OCEAN
Appellate Division, A-1415-04T3, July 1, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18177

Summary judgment for the defendant County based on the Tort Claims Act verbal threshold affirmed in an action for injuries sustained by the plaintiff when she stepped in a hole created by a missing brick in the sidewalk at the County courthouse; contrary to the motion court’s findings, the plaintiff presented sufficient objective medical evidence of a permanent injury through an X-ray, a CT scan, two MRIs, and an EMG; however, the plaintiff’s use of orthotics when she walked, the reduction of time and change in location of her work, and her complaints that she no longer can walk on a sandy beach or in her rocky yard, dance at weddings, or clean her house in the manner that she would like were not restrictions that amounted to “a permanent loss of a bodily function that is substantial.”

SANCTIONS
KEISER v. WEST BERGEN MENTAL HEALTHCARE, INC.
Appellate Division, A-6050-03T2, June 30, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18172

Denial of the defendant’s application for sanctions, attorney’s fees, and costs of suit against the plaintiff under N.J.S.A. 2A:15-49.1 and Rule 1:4-8 for filing a frivolous claim reversed and remanded; the defendant was the sole trustee of a trust that sold residential property to an organization to house psychiatrically disabled adults, and he also was a member of the organization’s board of trustees; the plaintiff sued on land use and zoning grounds, and both his original and amended complaint included claims against the defendant; the defendant had notified the plaintiff of his intent to seek sanctions on both complaints, and the claims against the defendant in both complaints were dismissed; there was “nothing objectively reasonable” in the plaintiff’s claims against the defendant in either complaint; sanctions should be imposed on remand because the plaintiff’s suit against the defendant was filed in bad faith.

LAND USE
CHILDREN’S SEASHORE HOUSE OF THE CHILDREN’S HOSPITAL OF PHILADELPHIA, INC. v. CITY OF ATLANTIC CITY
Appellate Division, A-10-04T2, June 30, 2005, not approved for publication. (18 pages). Facts-on-Call Order No. 18173

Determination — that the defendant City’s adoption of an amendment to its zoning ordinance that applied only to the plaintiff’s property was illegal reverse spot zoning — affirmed; the City’s original RM-3 zone consisted of two blocks; one block was fully developed, and the other was the plaintiff’s property; the amendment changed the zone for the plaintiff’s property from RM-3 to RM-2, thus reducing the property’s permissible building height, maximum lot coverage, floor area ratio, and density; the trial court did not err because, after the plaintiff provided evidence of arbitrary conduct that was sufficient to overcome the presumption of validity, the City failed to meet its burden of justifying the amendment.

PUBLIC EMPLOYEES
DIVISION OF STATE POLICE v. SOBOLUSKY
Appellate Division, A-712-04T5, June 30, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18174

Final administrative decision of the Superintendent of the State Police that adopted the administrative law judge’s initial decision, that substantiated three disciplinary charges against the defendant State Trooper, and that imposed a 45-day suspension without pay affirmed; two charges were based on the defendant’s alleged false and misleading statements about his knowledge of incidents of harassment that were directed at another Trooper, and the third charge was based on an allegation that he had “created and posted demeaning and derogatory notes” about the other Trooper; the Superintendent’s decision was not arbitrary, capricious, or unreasonable, and it was supported by substantial credible evidence in the record.

HUSBAND AND WIFE
DUCHEMIN v. DUCHEMIN
Appellate Division, A-3279-03T5, June 30, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18175

Three post-divorce-judgment orders affirmed; contrary to the plaintiff ex-wife’s arguments on appeal, the trial court did not err (1) by retroactively terminating the defendant ex-husband’s alimony obligation as of the date of the divorce based on her cohabitation and the terms of the property settlement agreement, (2) in calculating the amount of alimony that the plaintiff had to repay, (3) by permitting the amount that the defendant had to transfer from his IRA to the plaintiff as equitable distribution to be offset by the amount of the alimony that the plaintiff had to repay, (4) by determining that the parties’ oldest child was emancipated under the PSA and by recalculating the defendant’s child support obligation, or (5) by directing the plaintiff to pay the defendant $1,750 in attorney’s fees.


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