NEW JERSEY LAWYER

DAILY BRIEFING      07/08/2005


News Briefs

SUBRYAN’S ACCUSER CLAIMS JUDICIARY RETALIATED AGAINST HER
The former law clerk who accused Passaic County Judge Randolph M. Subryan of sexually harassing her has sued the state and Subryan claiming the judiciary retaliated against her. Jennifer M. Breaton, now an attorney with a union in New York, seeks compensatory and punitive damages as well as an investigation of the judiciary’s anti-discrimination and hiring policies. In her suit filed in Essex County, Breaton claims she was shunned by court personnel after she made her allegations that Subryan groped and forcibly kissed her while clerking for him in 2003. Subryan’s attorney, Justin Walder of Roseland’s Walder Hayden & Brogan, said the suit undermines Breaton’s credibility, noting she “steadfastly” said she did not plan to file a civil action. The New Jersey Supreme Court’s Advisory Committee on Judicial Conduct did, though, find Breaton’s accusations credible and recommended Subryan be censured. Subsequently, the lawyer for the Administrative Office of the Courts urged that the judge, who has remained on the bench, be suspended for six months. The high court held a hearing five months ago, but there’s been no decision yet. The plaintiff in Breaton v. State of New Jersey is represented by Lisa Manshel of Francis & Manshel in Millburn. 7-7-05

JUDGE DECLINES TO DISMISS REPAIR SUIT AS UNTIMELY
Bergen County Judge Charles J. Walsh has refused to dismiss a suit brought by a homeowner who sued a builder seven years after discovering a leak but one year after discovering mold in the house. In Baum v. Nigro, Walsh noted the builder repaired the problem in 1997, according to the homeowner’s consultant. However, it wasn’t until 2003 that the homeowner discovered the mold. The statute of limitations is six years. Walsh held, “The fact that remediation work was conducted is essential” to the statute-of-limitations issue. He noted repair work allegedly was complete, but a problem later developed. Citing a 1993 Law Division case, Terrace Condo. Assoc. v. Midlantic National Bank, he said it suggested “repair work such as done here may serve to toll the statute of limitations.” (A full text of Baum, Facts-on-Call Order No. 18192, can be ordered from NJL Online or by calling 800-670-3370.) 7-7-05

NEW VIATICAL FRAMEWORK ESTABLISHED
New Jersey is getting a beefed-up regulatory scheme for the practice of turning over life insurance policies for cash. In such viatical arrangements, people who don’t expect to live many more years sign their policies over to investment groups that pay the premiums and collect the death benefit when the viator dies. The practice grew in the 1980s as HIV/AIDS sufferers needed cash. But as life-extending drugs became available, viatical companies started losing money and some made up the difference with fraud. A new breed of companies has invited more thorough regulation nationwide, but life insurance companies don’t like the whole concept. New Jersey insurers dropped their resistance to legislation here after they won an amendment eliminating a provision preventing them from putting anti-viatical clauses in their policies. The Senate version (S-1940) was sponsored by Sen. Raymond J. Lesniak (D-Union) and passed 35-1. The Assembly version (A-3428) was sponsored by Assemblyman Neil M. Cohen (D-Union) and passed unanimously. 7-7-05

POT CANDY SHELVED AFTER ASSEMBLY ORDERS AG REVIEW
A week after the Assembly passed a resolution calling on Attorney General Peter C. Harvey to explore the feasibility of prohibiting the sale of marijuana-flavored candy, Trenton-based novelty products maker ICUP Inc. is pulling its “Pot Suckers” hemp-flavored lollipops off the market. Company spokesman Steven Trachtenberg insists the decision was not related to the Assembly action or similar movements afoot in Texas, Michigan and New York. “The decision was not based on the controversy. Controversy brings sales,” he said. Glenn Beebe, chief of staff for Assemblyman Francis L. Bodine (R-Camden) who sponsored the resolution, AR-286, said, “Maybe he couldn’t take the heat.” 7-7-05

WEB-BASED LAWYER SERVICE ANGLING FOR CUSTOMERS HERE
TxNix.com, a service that claims to help motorists fight traffic violations online, has begun marketing in New Jersey with links on its website for assistance in all 21 counties. The business, which says it connects customers to a “traffic ticket attorney” who will provide free advice and follow-up services, operates in 12 other states, including New York, according to its website. 7-7-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, JULY 7, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JULY 7, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, JULY 8, 2005.


APPROVED FOR PUBLICATION
CONSUMER PROTECTION
SICKLES v. CABOT CORP.
Appellate Division, A-3129-04T5, approved for publication July 7, 2005. (24 pages). Facts-on-Call Order No. 92568

An indirect purchaser of an allegedly price-fixed product may not state a claim for antitrust violations under either the New Jersey Antitrust Act or the Consumer Fraud Act.

NOT APPROVED FOR PUBLICATION
INSURANCE
FRANKLIN MUTUAL INSURANCE CO. v. GPU, INC.
Appellate Division, A-907-04T2, July 7, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18193

Summary judgment for the defendant electric utility in a subrogation action by the plaintiff insurer affirmed; the plaintiff paid $6,255.78 to the insured market for losses incurred during a three-day power outage after Hurricane Floyd; the plaintiff alleged that the defendant delayed in restoring power to the market, which caused food to spoil from a lack of refrigeration; the trial court properly concluded that the plaintiff’s subrogation action was barred by Weinberg v. Dinger because it was against public policy; contrary to the plaintiff’s contention, Bongo v. New Jersey Bell Telephone was distinguishable.

TORT CLAIMS ACT
MALEK v. CITY OF BAYONNE
Appellate Division, A-4309-03T2, July 7, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18195

Summary judgment for the defendant municipality, the defendant Department of Public Works, and the defendant Department of Parks and Recreation reversed and remanded for trial in an action for injuries sustained by the 3-year-old plaintiff when he fell through or over the guardrail at the top of a slide in a public park in the municipality and landed on the pavement; the issue was whether the precautions provided — rubber mats around some of the slide but not all of it — were sufficient and, if not, whether the defendants’ failure to install additional padding was “palpably unreasonable”; the plaintiff’s expert provided sufficient evidence from which a jury could find that the playground and the slide were in a dangerous condition; it was for the jury to determine whether the plaintiff’s injuries were the result of a “freak accident” that occurred despite the defendants’ reasonable efforts to provide padding or whether they were the result of the defendants’ “manifestly imprudent failure to comply with basic and obvious safety standards for the construction of a playground.”

ARBITRATION
LABECKI v. MILLHOUSE CONVALESCENT CENTER
Appellate Division, A-1479-04T5, July 7, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18196

Denial of the plaintiff convalescent center resident’s motion to reinstate his complaint and for acceptance of his trial de novo request nunc pro tunc affirmed in an action for injuries sustained by the plaintiff in a slip-and-fall accident at the defendant convalescent center; the plaintiff’s request for a trial de novo was mailed 28 days after the arbitration award but was not received by the court until eight days after the 30-day period had expired; the plaintiff asserted that there were exceptional circumstances (1) because the denial of both his motion to amend his complaint to include the cleaning service as a defendant and the defendant’s motion for leave to file a third-party complaint against the cleaning service led the attorneys to seek a conference with the court that should have deferred the 30-day limit and (2) because the secretary for the plaintiff’s attorney inadvertently mailed the request for a trial de novo three days before the expiration date rather than hand delivering it due to her belief that it would get there in time; the motion judge properly concluded that neither reason was “an exceptional and compelling reason” to extend the 30-day period for filing a request for a trial de novo.

HUSBAND AND WIFE
HOULE v. HOULE
Appellate Division, A-7008-03T1, July 7, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18194

Judgment of divorce that required the plaintiff ex-husband to pay $180 per week in permanent alimony to the defendant ex-wife and that allocated the marital debt affirmed; there was no basis to intervene in the trial court’s alimony award or its allocation of debt (1) where the trial court applied the appropriate statutory factors, (2) where the trial court imputed income to the defendant even though she was absent from the workforce during the marriage, (3) where the trial court determined that the funds borrowed by the plaintiff’s children did not apply to reduce the marital debt, and (4) where the trial court’s factual findings were supported by the record.

PAROLE
STENSON v. NEW JERSEY STATE PAROLE BOARD
Appellate Division, A-6450-03T2, July 5, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18190

Final decision of the State Parole Board that denied the petitioner inmate’s application for parole and that established a 10-year future eligibility term affirmed; the petitioner was convicted in 1980 of first-degree murder, rape, and robbery, among other crimes; substantial credible evidence in the record supported both (1) the Board’s conclusion that there was a “substantial likelihood” that the petitioner would commit another crime if he was released on parole and (2) the imposition of the 10-year future eligibility term, which exceeded the standard future eligibility term.

SEARCH AND SEIZURE
STATE v. GALLAWAY
Appellate Division, A-1873-03T4, July 5, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18189

Denial of the defendant’s motion to suppress 15 bricks of heroin that were found during a warrantless search under the front passenger seat of a vehicle in which he was a passenger affirmed; when the search was conducted, the vehicle was parked on the side of the Atlantic City Expressway, all of the vehicle’s occupants were handcuffed, 29 minutes had passed since the vehicle was stopped, and several police officers were on the scene; contrary to the defendant’s contention, exigent circumstances that justified a warrantless search existed (1) where the officers had a “quite real” fear that the evidence would be destroyed or removed, (2) where the stop posed a “high risk” to officers, and (3) where the vehicle was stopped on a “busy toll road” in the “heart of the summer.”

CRIMINAL TRIALS
STATE v. SCHWEGEL
Appellate Division, A-6870-02T1, July 5, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 18191

Order suppressing all of the defendant corrections officer’s statements based on Miranda violations reversed and remanded; a confidential informant claimed that the defendant engaged in sexual contact with inmates and that the defendant possessed a camera in violation of employment rules; an investigation ensued, the defendant was in custody for 80 minutes before Miranda warnings were issued, and the camera was located during that time; the investigation then focused on criminal activity, and Miranda warnings were issued; the defendant made a taped statement that day and a written statement two days later after again receiving Miranda warnings; the trial court granted the motion to suppress because it determined that the defendant had been questioned before receiving Miranda warnings, but there was no evidence (1) that the defendant’s statements before Miranda warnings were given went beyond an admission that he had brought a camera to work or (2) that the defendant’s free will was overcome.


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