NEW JERSEY LAWYER

DAILY BRIEFING      08/19/2005


News Briefs

TWO JUDGES ELEVATED TO APPELLATE DIVISION
Superior Court Judges George L. Seltzer of Atlantic County and William P. Gilroy of Monmouth County have been elevated to the Appellate Division. They succeed Judges Dennis J. Braithwaite, who is retiring Sept. 1, and Joseph A. Falcone, who is returning to the trial bench in Morris County at his own request. Seltzer was appointed to the bench in 1988 and has served in the family, civil and general equity divisions. He is a graduate of Rutgers Law School-Camden and clerked for the late Justice Vincent S. Haneman. A judge since 1996, Gilroy has served in the civil division and is a member of the Supreme Court’s Civil Practice Committee. The graduate of Villanova School of Law also has held several municipal court judgeships in Monmouth County. Braithwaite joined the court in 1984 and the appeals bench in 1994. Falcone became a judge in 1986, served as an assignment judge in Passaic and Essex counties, and spent one year on the appellate court. 8-18-05

MIIX PAYOUT PLAN APPROVED
Settlement checks should be in the mail by mid-September for about 500 plaintiffs with claims against MIIX, the financially troubled medical malpractice insurer now under state supervision. Mercer County Judge Neil H. Shuster has approved a plan to pay as many claims as possible before the company’s assets run out. The Department of Banking and Insurance, which has managed the assets of the once-prosperous company since last fall, asked Shuster for the go-ahead to pay claimants who accepted settlement offers in May. The maximum payout under the plan is $1 million. The alternative, the banking department said, is to declare the company insolvent and turn its assets over to the state’s guaranty fund, which has a maximum $300,000 payout. 8-18-05

FORMER APPELLATE JUDGE MARTIN J. KOLE DIES
Former Appellate Division Judge Martin J. Kole, who also served on the bench in Bergen and Passaic counties, died Wednesday at age 90. With the Appellate Division from 1974 until retiring in 1985, he was recalled to the bench in 1989. He presided in the former Juvenile and Domestic Relations Court in the mid-1950s and served on the bench in Bergen County and later in Passaic County from 1962 until elevated to the appeals court. He began his career as a real estate attorney in Hackensack after graduating from Columbia University School of Law in New York. Services were Thursday. 8-18-05

DRUG DIVISION COURT INTERN ARRESTED ON DRUG CHARGES
Situations like this happen occasionally but the irony is never lost. A summer intern in the criminal drug division of Bergen County Court in Hackensack was arrested for distributing cocaine in a nearby community and faces a possible 30-year prison sentence. Yoel Cajiga, a student from Fairleigh Dickinson University’s Teaneck campus who was working in the office of Judge Lois Lipton, was arrested after allegedly trying to distribute 300 grams of cocaine to undercover agents. Bergen County Court Administrator Jon Goodman said he was surprised because background checks showed no prior record for Cajiga. His attorney, Clifton solo John R. Klotz, has said he will plead not guilty. 8-18-05

FEDERAL COURTS PART OF THE VANISHING TRIAL SYNDROME
Adding to what seems to be never-ending accounts of how trials are becoming a relative rarity, the U.S. Justice Department has said its statistics certainly concur. It reported the number of personal injury cases decided by trial in federal courts has declined nearly 80 percent since 1985. In 2003, the most recent year of the department’s study, there were 768 trials compared to 3,604 in 1985. 8-18-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, AUGUST 18, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, AUGUST 18, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, AUGUST 19, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON THURSDAY, AUGUST 18, 2005.

NOT APPROVED FOR PUBLICATION
ATTORNEY’S FEES
PEAK CONSTRUCTION, L.L.C. v. MELONE
Appellate Division, A-5036-03T5, August 18, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 18397

Denial of the defendant property owners’ request for attorney’s fees and costs affirmed in an action arising from the termination of a construction contract; following the property owners’ termination of the contract, the plaintiff builders’ service of notices of unpaid balance, and an arbitration in which the arbitrator found that the builders’ claims were “willfully overstated,” the builders obtained an order that allowed them to enter a construction lien but that required that they post a bond for 110 percent of the lien amount; the builders failed to post the bond, and the property owners sought attorney’s fees; the trial court did not abuse its discretion by denying the property owners’ request for attorney’s fees because it was “unreasonable” and because it was untimely under the 20-day time period set forth in Rule 4:49-2.

TORT CLAIMS ACT
DAWSON v. NEW JERSEY TRANSIT
Appellate Division, A-4994-02T3, August 18, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18393

Summary judgment for the defendant New Jersey Transit and the defendant bus driver based on the Tort Claims Act verbal threshold reversed and remanded; a New Jersey Transit bus struck a car, veered off the road, and hit the plaintiff’s house; the plaintiff had just gone to bed and was “half asleep” when the accident occurred; the driver of the car died at the scene; the plaintiff’s claim that she suffered “significant and permanent psychological damage” as a result of the accident was substantiated by objective medical proofs from her treating psychiatrist and from her mental health clinician; the facts of the incident and the plaintiff’s observations made the psychological sequelae “objectively reasonable”; the plaintiff’s damages claim also was supported by a Social Security determination; thus, the plaintiff’s evidence satisfied the Tort Claims Act verbal threshold, and a jury must decide whether she is entitled to an award of damages for pain and suffering.

HUSBAND AND WIFE
CHEREPAKHOV v. CHEREPAKHOV
Appellate Division, A-5949-03T3, August 18, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18396

Denial of the plaintiff ex-husband’s motion for a stay of two June 2004 post-divorce-judgment orders that “essentially granted” the defendant ex-wife’s motion to enforce litigants’ rights and that denied the ex-husband’s motion to terminate or reduce part of his child support obligations under the parties’ property settlement agreement affirmed, but the matter remanded for the trial court to review and verify financial information; contrary to the ex-husband’s argument on appeal, the trial court did not “improperly modify” the PSA to deny the child support request; rather, the trial court based its ruling on the ex-husband’s failure to provide sufficient reliable financial information; the trial court did not abuse its discretion by awarding attorney’s fees to the ex-wife based on its conclusion that the ex-husband acted in bad faith by re-litigating issues that had been decided less than six months before.

PUBLIC EMPLOYEES
IN RE FLORES
Appellate Division, A-2771-03T1, August 18, 2005, not approved for publication. (22 pages). Facts-on-Call Order No. 18395

Final decision of the Merit System Board that the respondent City of Trenton was justified in removing the appellant firefighter affirmed; the firefighter sought assistance in May 2001 from the Mercer Employee Assistance Service for his drug and alcohol addiction, and he completed an inpatient program at a treatment facility; however, the firefighter relapsed after he failed to follow the facility’s recommendations, and he tested positive for cocaine on July 6; the firefighter then knowingly entered into a last-chance “On-Notice” agreement with the City, received further treatment, and again tested positive for cocaine on October 17; the record did not support the conclusions that the City was responsible for the firefighter’s failure to address his drug addiction adequately and that the firefighter’s removal was arbitrary, capricious, or unreasonable.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF D.Y.M.
Appellate Division, A-5277-02T2, August 18, 2005, not approved for publication. (18 pages). Facts-on-Call Order No. 18394

Order finding the appellant to be a sexually violent predator under the Sexually Violent Predator Act and committing him to the Special Treatment Unit affirmed; the trial court did not err in admitting the testimony of a psychiatrist and a psychologist merely because they took account of or relied on forensic evaluations that were performed by others; the record did not reveal that the trial court’s determination that the appellant was a sexually violent predator was “a clear abuse of discretion”; assuming without deciding that ineffective assistance of counsel claims are cognizable in appeals from orders of civil commitment under the SVPA, the Appellate Division rejected the appellant’s assertion that his trial counsel was ineffective.

CIVIL ACTIONS
IN RE LEAD PAINT LITIGATION
Appellate Division, A-1946-02T3, August 17, 2005, not approved for publication. (51 pages). Facts-on-Call Order No. 18390

Dismissal of the plaintiff governmental entities’ action against the defendant lead-paint manufacturers and distributors for costs for detecting and removing lead paint, for providing medical care for residents poisoned by lead, and for developing programs to educate residents about the hazards of lead paint affirmed in part, reversed in part, and remanded; the Law Division erred by holding that allowing the action to proceed would offend the principle of separation of powers “by sanctioning a remedial process independent of that created by the Legislature” and by violating the Commerce Clause; the Law Division erred by dismissing the plaintiffs’ public nuisance cause of action, but it properly dismissed the plaintiffs’ claims based on unjust enrichment, a duty to indemnify, fraud, and civil conspiracy.

FROM THE ADMINISTRATIVE AGENCIES
PENSIONS AND BENEFITS
GOURLEY v. BOARD OF TRUSTEES, TEACHERS PENSION AND ANNUITY FUND
OAL Docket No. TYP 8252-04S, Agency Docket No. TPAF 1-10-104587, Initial Decision: July 18, 2005, Final Agency Decision: August 5, 2005. By Masin, ALJ. (15 pages).

The Board of Trustees of the Teachers’ Pension and Annuity Fund adopted the administrative law judge’s initial decision, which reversed the Board’s earlier decision and which granted the petitioner’s September 2003 application for accidental disability retirement benefits. In January 1988, a movable wall fell on the petitioner during a seminar she was conducting. Although she suffered from “considerable, constant pain” and underwent treatments and procedures to alleviate her pain, the petitioner continued to work until after she fell in January 2003. The ALJ concluded that the petitioner established that she had suffered a traumatic event in January 1988 and that the traumatic event was the “essential significant or substantial contributing cause of her permanent and total disability.” Although the petitioner’s application was not filed within five years of the traumatic event, the ALJ concluded that the application was timely under N.J.S.A. 43:16A-7 because it was filed within five years of the manifestation of her disability. The ALJ found that that manifestation was “indeed long delayed” but that the petitioner’s 2003 disability directly resulted from her 1988 injury.


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