NEW JERSEY LAWYER

DAILY BRIEFING      08/22/2005


News Briefs

HOMEOWNER ASSOCIATIONS’ IRON GRIP COULD LOOSEN
Homeowner associations could yield some of their powerful grip on how their developments are run under two measures awaiting action in Trenton. A-3855, which passed the Assembly and awaits action in the Senate, and A-3988, which is in committee, would give homeowners more say in how their developments are managed and greater access to association records. Also, plaintiffs have indicated they’ll seek New Jersey Supreme Court certification in a case in which a trial judge ruled government openness standards do not apply to such associations. That case is Committee for a Better Twin Rivers v. Twin Rivers Homeowners Association. For a full story, see the Aug. 22 New Jersey Lawyer. 8-19-05

SEX-PREDATOR RESIDENTIAL BAN TAKES EFFECT AFTER THREE YEARS
If New Jersey lawmakers enact one of the pending bills that would restrict where convicted sex offenders may live, it could take a long time to become effective. Some registered sex offenders in Iowa are finally packing their belongings three years after that state’s legislature enacted a law prohibiting them from living within 2,000 feet of schools or day-care centers. U.S. District Judge Robert Pratt in Iowa City has set a Sept. 1 deadline for offenders to comply. In several challenges to the law, the 8th U.S. Circuit Court of Appeals reversed Pratt’s ruling that the law violated due process. Also, the Iowa Supreme Court has upheld the statute as a way to protect the public rather than punish offenders. 8-19-05

IDENTITY THIEVES USING JURY DUTY SCAMS
Identity thieves are targeting the public with phone calls that coerce people into divulging personal information first by threatening them with prosecution for failing to comply with jury service. The Administrative Office of the U.S., Courts advises people who receive such calls to contact their area’s U.S. District Court clerk’s office. It stresses federal courts do not require anyone to provide sensitive information in a phone call, adding most contact with prospective jurors is via mail. Tamara Kendig of New Jersey’s Administrative Office of the Courts said there have been no reports of such scams involving state jury duty. 8-19-05

RULING RESTORES BENEFITS TO IMMIGRANTS
Low-income people who are elderly, blind and disabled cannot receive less state benefit money just because they’re immigrants and haven’t become citizens within the seven-year period set by Congress to let their federal benefits continue, a New York State judge in Manhattan has ruled. Justice Jane S. Solomon’s decision restores an estimated $1.5 million to 487 immigrants cut off the past two years and $3 million a year for 2,000 likely to reach the cutoff within the next seven years. The state will appeal. It had argued the immigrants had no right to sue because the cutoff was mandated by Congress. 8-19-05

STATE FARM WINS $1 BILLION CLASS-ACTION REVERSAL
In a victory for business groups seeking to limit class-action suits, the Illinois Supreme Court reversed a $1 billion class judgment against State Farm Mutual Automobile Insurance Co. The court said the 4.7 million claims over the insurer’s use of generic car parts for repairs varied too much to be grouped together. Lawyers familiar with the case say it indicates that courts will more closely scrutinize plaintiff classes in other cases. Robin Conrad, senior vice president of the National Chamber Litigation Center, said the ruling “sends a strong signal that class-action abuse won’t be tolerated.” It also could indicate that Illinois’ highest court might reverse a $10.1 billion class-action jury award against cigarette maker Philip Morris for false marketing. “The court made it crystal-clear that individual questions of fact are not to be mowed down by overly broad class-action principles,” said Victor Schwartz of Washington’s Shook Hardy & Bacon, which represents Philip Morris’s parent company, Altria Group. 8-19-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, AUGUST 19, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, AUGUST 19, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, AUGUST 22, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON FRIDAY, AUGUST 19, 2005.

NOT APPROVED FOR PUBLICATION
REAL PROPERTY
OVERLOOK AT LOPATCONG CONDOMINIUM ASSOCIATION, INC. v. SEGAL AND MOREL AT LOPATCONG, L.L.C.
Appellate Division, A-2198-04T5, August 19, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18400

Order granting a portion of the plaintiff condominium association’s request for the turnover of three classes of documents from the defendant developer affirmed in part, vacated in part, and remanded; after the association gained control of the condominium, it sued the developer for the turnover of all property referenced by the New Jersey Condominium Act and the Planned Real Estate Development Full Disclosure Act; when the parties reached an impasse after a settlement, the association moved to enforce the settlement; the trial court granted the turnover request as to one class of documents, denied turnover of an affidavit identifying “the actual plans” used in the construction of the condominium, and ordered the turnover of any insurance policies owned by the association but not already in its possession; the general liability policy sought by the association was the developer’s personal property and was not subject to turnover; the denial of the association’s application for a more detailed affidavit was vacated; on remand, the parties may submit evidence as to whether the additional detail is necessary.

HUSBAND AND WIFE
DUFFY v. DUFFY
Appellate Division, A-6900-02T1, August 19, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18405

Post-divorce-judgment order that declared (1) that the plaintiff ex-wife was responsible for medical expenses that she incurred after the entry of the original divorce judgment and (2) that the ex-wife had received full payment of her share of a loan made by the parties to the defendant ex-husband’s father affirmed; after the original judgment was entered, the ex-wife moved to vacate the parties’ settlement agreement, and an amended judgment of divorce was entered following a trial; as to medical expenses, the date of the original judgment, not the amended judgment, was the appropriate cutoff date for the ex-husband’s obligation to provide health insurance to the ex-wife; the ex-wife’s argument that the ex-husband was obligated to offer COBRA coverage to her was not presented below and thus could not be reviewed on appeal; as to the loan, the trial court properly found that the ex-wife had not demonstrated that part of the loan came exclusively from her assets rather than from marital assets.

UNEMPLOYMENT COMPENSATION
PISTILLI v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Appellate Division, A-2952-04T5, August 19, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18399

Final decision of the respondent Board of Review that affirmed the denial of unemployment benefits to the petitioner affirmed; conflicts arose between the petitioner and a new co-worker; although the respondent employer made the co-worker apologize for his conduct, the petitioner resigned; in denying the petitioner’s claim for unemployment benefits, the Appeal Tribunal had found (1) that the petitioner had left her job because she was dissatisfied with the way her employer had settled the differences between her and the co-worker and (2) that this did not constitute good cause attributable to the work; the facts permitted the conclusion that the petitioner resigned for personal reasons, not out of concern for her safety; the Appeal Tribunal’s conclusion was not arbitrary, capricious, or unreasonable.

SENTENCING
STATE v. BOHLER
Appellate Division, A-2760-02T4, August 18, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18398

Conviction of first-degree attempted murder and three weapons offenses pursuant to an amended plea agreement, sentence to a seven-year prison term with an 85 percent parole disqualifier, and denial of the defendant’s motion to reinstate the original plea agreement affirmed; the defendant pleaded guilty to third-degree aggravated assault under the original agreement, which was premised on the State’s inability to locate the victim of the shooting; at the sentencing hearing, the judge stated that he knew the victim from drug court and vacated the original agreement; the amended agreement resulted from the State’s use of the judge’s comments to locate the victim; contrary to the defendant’s argument on appeal, his sentence was not invalid due to the judge’s failure to recuse himself; the judge did recuse himself, his decision to vacate the original plea agreement did not unfairly prejudice the defendant, and he did not abuse his discretion by vacating the plea; the defendant’s motion for reinstatement was properly denied by a different judge, who exercised independent judgment and examined the case de novo.

VERBAL THRESHOLD
SPANN v. DALE
Appellate Division, A-5201-03T3, August 19, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18402

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court appeared to have assumed that the plaintiff had provided sufficient objective evidence of a permanent injury but that she did not demonstrate that the injury had a serious impact on her life; while this matter was on appeal, the New Jersey Supreme Court decided DiProspero v. Penn and Serrano v. Serrano and determined that AICRA did not intend to subsume the serious-impact prong under Oswin v. Shaw and that a plaintiff who is subject to AICRA is required to submit only objective evidence of a permanent injury to overcome the verbal threshold; because the trial court determined only that the plaintiff did not provide sufficient evidence of a serious impact, the trial court was mistaken in entering summary judgment.

VERBAL THRESHOLD
MORGAN v. FUCHS
Appellate Division, A-7049-03T2, August 19, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18403

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court appeared to have assumed that the plaintiff had provided sufficient objective evidence of a permanent injury but that she did not demonstrate that the injury had a serious impact on her life; while this matter was on appeal, the New Jersey Supreme Court decided DiProspero v. Penn and Serrano v. Serrano and determined that AICRA did not intend to subsume the serious-impact prong under Oswin v. Shaw and that a plaintiff who is subject to AICRA is required to submit only objective evidence of a permanent injury to overcome the verbal threshold; because the trial court determined only that the plaintiff did not provide sufficient evidence of a serious impact, the trial court was mistaken in entering summary judgment.

INSURANCE
PANAIA v. RUTGERS CASUALTY INS. CO.
Appellate Division, A-6426-03T3, August 19, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18404

Dismissal of two personal injury protection benefits actions based on the trial court’s determination that the plaintiff medical provider could not prevail in a direct action for the cost of his services because he had not obtained the defendant insurer’s express consent to an assignment of benefits vacated and remanded; the medical provider argued that the trial court’s decision to resolve the issue without taking evidence precluded him from establishing the “unreasonableness” of the insurer’s position and from developing a theory that the insurer was equitably estopped from arguing that a valid assignment had not been obtained; although the Appellate Division would not consider the merits of the estoppel and waiver argument because it was not advanced before the trial court, the medical provider was entitled to establish, as a matter of fact, that the insurer’s conduct and its effects warranted the application of estoppel or waiver.

LANDLORD AND TENANT
GREENBLATT v. RIVIERE
Appellate Division, A-2423-04T2, August 19, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18401

Judgment after a bench trial of $6,000 for the plaintiff landlord on a breach of contract claim affirmed; the landlord agreed to lease part of a building to the defendant tenant for the operation of a gym; under the agreement, the tenant, who was a builder, would perform construction work with money borrowed from the landlord and would pay no rent; after the landlord paid $30,000 in construction costs and work was underway, the tenant abandoned the project when he learned that the municipality planned to install parking meters in the building’s parking lot; the landlord thus had to restore the building and clean the area; the trial court rejected the landlord’s claims for consumer fraud and misrepresentation; the Appellate Division deferred to the trial court’s findings of fact and concluded that the landlord’s arguments on appeal lacked merit.


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