NEW JERSEY LAWYER

DAILY BRIEFING      08/25/2005


News Briefs

TITLE ASSOCIATION SUES COUNTY OVER RECORDING DELAYS
The trade organization for the state’s title insurers and underwriters is suing Mercer County officials because of delays in recording real estate documents. The New Jersey Land Title Association wants freeholders to provide funding to improve the recording process. The suit claims the county has failed to comply with a consent order to record documents within one day that officials from Mercer and other counties signed to resolve litigation the title association filed in the mid-1990s. Delays in recording real estate documents are a serious problem at courthouses statewide, according to a recent report from the State Commission of Investigation that urged counties use revenue from recording fees to fund improvements at clerks’ offices. 8-24-05

ENVIRONMENTAL GROUP RIPS DEP OVER USE OF CONSULTANTS
An environmental group is accusing the Department of Environmental Protection of cultivating conflicts of interest by obtaining water pollution study services from consultants who also work for companies seeking to discharge pollution into the same water. Jeff Tittel of the state Sierra Club says the state’s use of such consultants “undermines the Clean Water Act and is a rip-off to state taxpayers.” At issue are services provided to DEP by TRC Omni Environmental Corp. in Princeton and Eatontown-based Najarian Associates. James Cosgrove, TRC’s president, maintains the company’s work with private businesses is not aimed at making it easier for them to pollute. DEP Commissioner Bradley Campbell denies there are conflicts. 8-24-05

IMMIGRATION PROSECUTIONS SURGE
The Department of Homeland Security has its hands full with immigration cases. The number the agency recommended for prosecution increased 65 percent in 2004 from the year before, and convictions increased 70 percent to 31,000, according to Transactional Records Access Clearinghouse, a Syracuse University-affiliated group that monitors federal enforcement. In New Jersey, the number referred for prosecution increased to 240 from 69 in 2001. Meanwhile, Lucas Guttentag of the American Civil Liberties Union’s National Immigration Rights Project contends the federal government is diverting resources from fighting serious crime to go after the “apparently minor offenses” in immigration. 8-24-05

PAROLE BOARD RECRUITING MENTORS IN MONMOUTH
The state Parole Board is looking for “life coaches” to help ex-offenders adjust to life outside prison. The program will train volunteers from eastern Monmouth County to help parolees connect with needed resources and lend an ear to the parolees’ problems. “Too often ex-offenders fail to reintegrate into society because they lack guidance and direction,” said board chairman John D’Amico Jr., adding he’d like to see the program expand statewide. Recruitment is being managed by the Red Bank parole district office and by the board’s Office of Community Partnership in Trenton. 8-24-05

WITH NEW LAW LOOMING, BANKRUPTCY FILINGS ZOOM
In an indication that people may be getting antsy about a new federal bankruptcy law slated to take effect Oct. 17, the number of filings surged to 467,333 for the three months ending June 30, an 11 percent increase from the previous quarter, reports the Administrative Office of the U.S. Courts. In New Jersey, filings increased 11.9 percent to 11,531. For the 12 months ended June 30, total bankruptcy filings in New Jersey decreased 4.3 percent to 40,719, while nationwide they increased just 0.10 percent to 1.637 million from 1.635 million the previous 12-month period. 8-24-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, AUGUST 24, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, AUGUST 24, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, AUGUST 25, 2005.


APPROVED FOR PUBLICATION
TAXATION
LANCO, INC. v. DIRECTOR, DIVISION OF TAXATION
Appellate Division, A-3285-03T1, approved for publication August 24, 2005. (20 pages). Facts-on-Call Order No. 92637

A corporation with no physical presence in New Jersey that receives licensing fees for the use of its trademarks and service marks in New Jersey from an entity with a physical presence in New Jersey may be subject to the New Jersey Corporation Business Tax without violating the Commerce Clause of the U.S. Constitution.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
PATYRAK v. BOYADJIS
Appellate Division, A-6495-03T5, August 24, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18424

Summary judgment dismissing the plaintiff’s legal malpractice action affirmed substantially for the reasons expressed by the motion judge; the defendant attorney represented the plaintiff’s corporation in an eviction action against the corporation for the nonpayment of rent; the plaintiff alleged that he lost the $30,000 bond that he had posted as security for back rent because the attorney did not timely submit an order to the court, which resulted in the case being transferred to an arbitrator; the plaintiff’s expert could not render an opinion that the attorney’s alleged negligence was a proximate cause of the plaintiff’s damages; contrary to the plaintiff’s argument, an expert opinion was required to support his claim because this was not a case where a lay jury could decide the contested issue without the help of an expert opinion.

INSURANCE
RUTHERFORD v. AIG AMERICAN INTERNATIONAL INSURANCE CO. OF NEW JERSEY
Appellate Division, A-1092-03T3, August 24, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18421

Decision after a bench trial that declared the plaintiff entitled to the maximum uninsured motorist coverage under his mother’s auto insurance policy reversed and remanded; the plaintiff, who lived in another state, was injured while driving his mother’s vehicle during a visit to New Jersey; the defendant insured the vehicle of the mother, who lived in New Jersey, under a policy that contained a step-down clause that set the maximum limit of liability for bodily injury at the statutory minimum of $15,000 for any insured who was not a named insured or a “family member” under the policy; the defendant denied full UM coverage because the plaintiff did not reside with his mother on the day of the accident, but it offered UM coverage at the lower limit under the step-down clause; contrary to the trial court’s finding, the definition of “family member” was not ambiguous, and it was unnecessary to apply the reasonable expectations doctrine.

PREMISES LIABILITY
TAMBARO v. HAZLET MULTIPLEX CINEMAS, NATIONAL AMUSEMENTS, INC.
Appellate Division, A-4972-03T2, August 24, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18422

Final order granting summary judgment to the defendant owner of a movie theater complex in a premises liability action reversed and remanded; the plaintiff alleged that she slipped and fell on a sidewalk outside the complex; the trial court dismissed the complaint on the grounds that the report of the plaintiff’s expert was a net opinion and that the rest of the evidence was insufficient to support the claim; by incorporating industry standards, the expert presented a sufficient basis for his opinion that the sidewalk posed a danger; additionally, the trial court “invaded the role of a jury” by looking at the plaintiff’s photographs and concluding that the condition of the sidewalk was not unreasonably dangerous.

PERSONAL INJURY
SUMTER v. FANELLE
Appellate Division, A-249-04T1, August 24, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18425

Dismissal of the plaintiffs’ personal injury action without prejudice for failure to appear at mandatory arbitration pursuant to Rule 4:21A-4(f) and denial of the plaintiffs’ motion for reconsideration reversed and remanded; in a certification, the plaintiffs’ attorney stated that he had not received notice of the arbitration, and the defendants’ attorney asserted that the plaintiffs’ attorney had actual notice of the arbitration date, even if he did not receive notice from the court; the certification from the plaintiffs’ attorney was “uncontradicted,” and the fact that the arbitration notice contained the wrong zip code provided “some corroboration” for the certification; while it appeared that the defendants’ attorney sent the plaintiffs’ attorney a letter and a motion that referred to the arbitration date, this was not “a proper substitute for a notice from the court.”

DOMESTIC VIOLENCE
RIDER v. BYRNES
Appellate Division, A-405-04T2, August 24, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18423

Final domestic violence restraining order against the defendant ex-boyfriend reversed and remanded for vacation of the FRO; the plaintiff ex-girlfriend asserted that the ex-boyfriend had posted harassing material on his Web site, and the defendant claimed that the allegedly harassing statements were lyrics to a song that his band wrote, were not directed to a specific person, and were not communicated to the ex-girlfriend; the trial court erred by determining that the ex-boyfriend had committed an act of harassment because there was no evidence that he had communicated the statements to the ex-girlfriend; the ex-boyfriend’s posting of material that may have referred to the ex-girlfriend on his Web site by itself did not provide a legal basis for the entry of the FRO.

LANDLORD AND TENANT
ESPENSCHIED v. SCAVONE
Appellate Division, A-2467-05T5, August 24, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18426

Partial summary judgment that dismissed on statute of limitations grounds the claim for back rent by the plaintiff estate of the landlord affirmed; the defendant tenants leased the premises on a month-to-month basis for more than six years; according to the tenants, the rent was $1,000 per month, and they received a $200 per month credit for making repairs; almost six years after the tenants vacated the premises, the plaintiff filed a complaint for back rent alleging that the tenants had taken the credit after they stopped making repairs and that the tenants had paid only $800 per month even after the rent was increased to $1,300 per month; the trial court properly dismissed all of the claims except those that related to the two months of the tenancy that fell within the six-year limitations period because the right to sue for the breach of a monthly financial obligation between a landlord and a tenant arises when the obligation becomes due rather than at the end of the tenancy.

CIVIL PROCEDURE
LIBERTY MUTUAL INSURANCE CO. v. EAST RUTHERFORD TOWING, INC.
Appellate Division, A-5399-02T1, August 23, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18419

Portion of a Law Division order that sua sponte required the defendant municipality to audit towing bills arising from the enforcement of its ordinance and to prepare and issue monthly reports about the audits reversed; the order was entered after the plaintiff insurer, the State Insurance Fraud Prosecutor, and the defendant towing companies settled claims arising from overcharges for towing services; the municipality had been joined as a party in interest under N.J.S.A. 2A:16-56; the municipality correctly argued (1) that the obligations imposed by the Law Division violated due process because the complaint demanded no relief from the municipality and (2) that the sua sponte summary judgment procedure that the Law Division used after the municipality refused to consent to or be bound by the settlement violated the notice provisions of the Court Rules and denied the municipality the opportunity to respond in a meaningful way.

CIVIL PROCEDURE
GOLUB v. WAKEFERN FOODS CORP.
Appellate Division, A-3387-03T1, August 23, 2005, not approved for publication. (19 pages). Facts-on-Call Order No. 18418

Order that dismissed the pro se plaintiff’s complaint in a supermarket slip-and-fall action for failure to name the proper defendant and that denied his cross-motion to amend the complaint to name the allegedly proper owner reversed and remanded; after more than two years of communicating with the plaintiff about the accident and after the statute of limitations expired, the insurer of the defendant corporation asserted for the first time that the corporation was not the proper defendant because the supermarket was independently owned; as to the dismissal, the corporation was equitably estopped from denying ownership of the premises where it was “plain” that the corporation held itself out to the plaintiff as the party that controlled the premises; as to the amendment, there was “no prejudice whatsoever” in permitting it because the allegedly proper owner had notice of the complaint, and the amendment related back to the original filing date.

APPELLATE PROCEDURE
IN RE REQUEST BY CIGNA HEALTHCARE OF NEW JERSEY, INC.
Appellate Division, A-1847-02T5, August 23, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18420

Final decision of the respondent Board of Directors of the New Jersey Individual Health Coverage Program that denied the appellant insurers’ request for a pro rata exemption and that imposed an assessment of $9,536,777 for the Program’s 1996 reimbursable losses remanded to recalculate the assessment, but the appeal otherwise dismissed as moot; about $7 million of the assessment consisted of a “second tier assessment” that was imposed only on health-care carriers who received no exemption; in light of In re New Jersey IHCP, which was decided by the New Jersey Supreme Court while this appeal was pending, the Board granted the insurers a pro rata exemption, reimbursed the second tier assessment, and moved to dismiss the appeal as moot; the insurers’ arguments opposing dismissal consisted of (1) “speculation” about additional assessments and (2) constitutional arguments that did not include “issues of public importance” that were likely to reoccur and that therefore did not warrant a decision; a dispute about the calculation of the assessment had to be resolved on remand.


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