NEW JERSEY LAWYER

DAILY BRIEFING      08/10/2005


News Briefs

$650,000 SETTLEMENT IN WORKER INJURY SUIT
A suit in federal court in Newark involving an injured worker was settled for $650,000. In Meduri v. Bechtel, the worker, Bruno Meduri, alleged he was injured in a fall from an elevated slab of concrete that had an unprotected depression on its surface. Meduri, who was assigned to a safety operation installing a barrier around the perimeter of a foundation, suffered shoulder, knee and back injuries. The general contractor, Bechtel Corp., contributed two-thirds of the settlement, while a subcontractor, Euroway Contracting, contributed one-third. Meduri was represented by Anthony Bisignano of Bosco, Bisignano & Mascolo of Staten Island. Richard S. Nichols of Gennet, Kallmann, Antin & Robinson in Parsippany represented Bechtel, while James J. Horan of Mautone & Horan in West Orange represented Euroway. The settlement was reached before U.S. District Judge Joseph A. Greenaway Jr. 8-9-05

JACKSON STEPS INTO PAY-TO-PLAY RULES
Jackson Township has joined the list of New Jersey municipalities that have passed some form of pay-to-pay rules. Under a new ordinance, developers — and the lawyers and engineers working for them — must disclose any local campaign contributions as part of their application process. Supporters of the new measure pointed out that members of zoning and planning boards are appointed by elected members of the township committee, so it’s important to know if the developers have contributed. Local critics noted Jackson’s ordinance applies only to major site plan and subdivision applicants, not all government business. 8-9-05

EDUCATION DEPTARTMENT ORDERED TO PREPARE ABBOTT PLAN
Superior Court Judge Neil H. Shuster has ordered the state Department of Education to prepare a plan for managing the implementation of reforms mandated by the landmark Abbott v. Burke rulings. The plan, which must cover the 2006 and 2007 fiscal years, is to be prepared within 45 days. The action was brought by the Education Law Center (ELC) in Newark, which long has complained the state has dragged its feet in meeting Abbott orders. The plan must address recruitment, retention and deployment of the department’s Abbott division staff and include annual goals with benchmarks so progress can be assessed in implementing the Abbott education-funding decisions. ELC staff attorney Koren Bell said the plan “will assist in holding state education officials accountable for performance.” 8-9-05

CAMDEN COPS LINE UP FOR COUNSELING
The recent deaths of three boys trapped in a car trunk have left Camden with plenty of grief to go around. About 40 police officers, shaken by the tragic outcome of the two-day search, have asked for counseling, according to Chief Edwin Figueroa, which, he said “is an indication that people here in the Police Department have suffered as well. We’re human. We’re not infallible.” A report released last week enumerated failures and missed opportunities, but it didn’t recommend disciplining any officers. “Being a police officer in Camden is unlike any other police job in South Jersey,” said Bill Murray, president of the Camden Organization of Police Superiors. 8-9-05

IN N.J, IT’S SUNBATHING; IN MICHIGAN, IT’S STROLLING
Three days after the New Jersey Supreme Court ruled in Raleigh Avenue Beach Association v. Atlantis Beach Club late last month that the public has a right to use private beaches subject to a reasonable fee under the “public-trust doctrine,” the Michigan Supreme Court weighed in on a similar case. In Glass v. Goeckel, the issue was whether Lake Huron property owners could prevent someone from walking along the lakeshore. The Michigan court ruled the public-trust doctrine applied. It said, “Because walking along the lakeshore is inherent in the exercise of traditionally protected public rights of fishing, hunting and navigation, our public-trust doctrine permits pedestrian use of our Great Lakes, up to and including the land below the ordinary high-water mark.” 8-9-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, AUGUST 9, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, AUGUST 9, 2005:

EVIDENCE
A.B. v. Y.Z.
New Jersey Supreme Court, A-91, August 9, 2005. (24 pages). Facts-on-Call Order No. 92620

The trial court erred by allowing a 21-year-old sexual abuse victim to testify by closed circuit television outside of the defendant perpetrator’s presence in a civil proof hearing, but the error was harmless. Justice Rivera-Soto concurred, and Justice Long concurred in part and dissented in part.

THE SUPREME COURT has announced that it will release an opinion in BUBIS v. KASSIN, A-44, on August 10, 2005. The issue on appeal in Bubis addresses whether the construction of a berm on beachfront property violated the local zoning ordinance.



APPROVED FOR PUBLICATION
JUDGMENTS
NEW CENTURY FINANCIAL SERVICES, INC. v. STAPLES
Appellate Division, A-2116-04T5, approved for publication August 9, 2005. (13 pages). Facts-on-Call Order No. 92621

Once a monetary judgment entered in the Special Civil Part is docketed with the Clerk of Superior Court, it becomes a Superior Court judgment and a lien against the real property of the judgment debtors, and it is not subject to the N.J.S.A. 2A:17-17 levying and sale prohibitions. Where a docketed Superior Court judgment was levied against the real property of judgment debtors before they filed a bankruptcy petition, N.J.S.A. 2A:16-49.1 precludes the cancellation and discharge of that judgment as a lien against their real property after their discharge in bankruptcy, unless the court finds that the judgment lien was “subject to be discharged or released under the provisions of the Bankruptcy Act.”

NOT APPROVED FOR PUBLICATION
DOMESTIC VIOLENCE
OTEGUI v. OTEGUI
Appellate Division, A-1891-04T5, August 9, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18349

Final domestic violence restraining order reversed, the temporary restraining order reinstated, and the matter remanded for the entry of an amended TRO that incorporates the plaintiff wife’s allegations of a prior history of domestic violence and for a new final hearing; the plaintiff indicated on the domestic violence complaint that there was no history of domestic violence; where the defendant did not oppose the application, the FRO could be entered only after a finding or an admission that an act of domestic violence had been committed, and the Family Part properly made an inquiry of the defendant as to whether he admitted to the facts that constituted domestic violence; when the Family Part questioned whether the incident that gave rise to the complaint alone constituted an act of domestic violence, the plaintiff revealed for the first time that there was a history of domestic violence; based on the case law and the Domestic Violence Procedures Manual, the Appellate Division reversed; on remand, both parties should be afforded the right of cross-examination.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.R.G.
Appellate Division, A-1192-04T4, August 9, 2005, not approved for publication. (30 pages). Facts-on-Call Order No. 18350

Order that terminated the parental rights of the defendant father to his three children affirmed; the children lived with their mother before she died in a car accident; while the children lived with their father in the home of their paternal grandmother, the Division of Youth and Family Services effected an emergency removal of the children due to the father’s “severe physical abuse”; DYFS brought an action alleging child abuse and neglect under Title 9 against the father, which was terminated when this guardianship action was filed; contrary to the father’s argument on appeal, the evidence “overwhelmingly” supported the trial court’s findings and conclusions; the father’s claims that he received ineffective assistance of counsel and that the judge who had presided over the Title 9 action should not have presided over this action lacked merit.

DRUNK DRIVING
STATE v. RUGGIERO
Appellate Division, A-748-04T2, August 9, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18348

Judgment affirming the defendant’s conviction on a charge of driving while intoxicated affirmed; a police officer clocked the defendant’s vehicle on radar as speeding; the officer also saw the vehicle braking for no apparent reason; when the officer stopped the vehicle, he noted the defendant’s “bloodshot and watery” eyes, his slurred speech, and his flushed face, as well as the odor of alcohol on his breath; the defendant performed poorly on field sobriety tests and on two later Breathalyzer tests; the defendant argued that a “belching” episode on route to the police station had skewed the first Breathalyzer test, although identical readings resulted from both tests; there was sufficient evidence of probable cause to arrest the defendant on a DWI charge and to require him to submit to Breathalyzer testing.

CRIMINAL TRIALS
STATE v. PARRA
Appellate Division, A-4118-03T1, August 9, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18347

Judgment affirming convictions of the defendant residential property owner for violations of local ordinances relating to the rental of rooms in a private residence affirmed; the municipal housing inspector and zoning officer issued summonses to the defendant for failing to register and obtain a license for his “residential rental facility” and for failing to obtain a certificate of compliance for a change of occupancy at the property; contrary to the defendant’s argument, the fact that he received a letter from the State Bureau of Rooming and Boarding House Standards indicating that he did not need a license from the Bureau did not mean that he was not required to comply with local code provisions that regulate the rental of housing units.

NEGLIGENCE
DeMARCO v. ROCHA
Appellate Division, A-4220-03T5, August 8, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18346

Judgment of $2,999.17 for the pro se plaintiff driver after a jury trial in an action for property damage to his 1987 Nissan that occurred in an automobile accident affirmed; in a “convoluted” case arising from two separate automobile accidents and allegations of conspiracy, the jury awarded the plaintiff the market value of his vehicle, as established by the defense witnesses, plus $90 for towing charges; the jury declined to award damages for storage, a rental car, and other incidental losses claimed by the plaintiff; contrary to the plaintiff’s arguments on appeal, (1) the jury verdict was supported by the record, (2) the trial court did not err by vacating the default of the defendant driver in the second accident or by not vacating the settlement of the plaintiff’s personal injury claim, and (3) the plaintiff’s claims against the defendant insurers and the defendant operator of a vehicle that was involved in the first accident with the plaintiff were properly dismissed.


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