NEW JERSEY LAWYER

DAILY BRIEFING      08/26/2005


News Briefs

RETIRED ESSEX JUDGE IRVIN B. BOOKER DIES
Services are Monday for retired Judge Irvin B. Booker who died Aug. 23 at age 72. He retired in 1997 after 17 years on the Essex County bench. He was a Newark municipal judge in the 1970s, becoming presiding judge in 1974. Gov. Brendan T. Byrne appointed him to the Essex County bench in 1980, where he served most of the time in family court. While in private practice in Newark in the 1960s, he brought several police brutality complaints to court. As a judge, he hosted annual Black History Month at the county courthouse. A memorial service is 11 a.m. Monday at Queen of Angels Church in Newark. Viewing will be there Sunday from 4 to 7 p.m. Memorial donations to the Irvin B. and Mildred Davis Booker Endowed Scholarship Fund may be sent to Rutgers University Foundation, Winants Hall, 7 College Ave., New Brunswick, N.J. 08901. 8-25-05

MALPRACTICE CLAIMS RISE AGAINST P.I. LAWYERS AND LARGE FIRMS
Malpractice lawsuits have increased 14.8 percent against firms with 40 or more lawyers and 5.8 percent against personal injury practitioners in recent years, according to the American Bar Association. Its report on malpractice trends from 2000 to 2003 further found an 11.29 percent increase in claims based on pre-hearing activities and an 8.29 boost in those based on non-litigation advice during the period covered compared to 1996-99, the time frame of its last study. Personal injury and real estate continue to be the practice areas that generate the most claims, comprising 19.96 percent and 16.46 percent respectively in the United States, and 25 percent and 22 percent in Canada. The report is based on nearly 30,000 claims in the United States and 11,577 in Canada covered by five malpractice insurers. The full report is on the ABA website, abanet.org. 8-25-05

SCHOOL BOARD CAN’T RESTICT ‘PERSONALLY DIRECTED’ PUBLIC COMMENT
Citizens can criticize members of their school board during public comment portions of board meetings, a federal judge has ruled. In Moore v. Asbury Park Board of Education, U.S. District Judge Mary L. Cooper in Trenton barred the board’s policy of restricting comments it considers “personally directed.” She granted a preliminary injunction to two residents who claim school board President Robert DiSalvo ordered silence when they questioned whether his background as a former gay nightclub manager affected his ability to be a role model for children. 8-25-05

UNION JURY AWARDS $375,000 IN AUTO ACCIDENT CASE
A Union County jury awarded $375,000 plus interest to a man who suffered back injuries in a two-car crash. In Daniels v. Rottman, the plaintiff, now 62, testified that bulging neck discs and shoulder impingement suffered in the accident in August 2003 in Scotch Plains forced him to give up work as a minister. His attorney, Michael A. Percario of Linden, said the defense, represented by Eric H. Bennett of the Law Office of Doreen M. Ryan in Cranford, made no pre-trial offer. Judge John Pisansky presided. 8-25-05

BLACK, HISPANIC MOTORISTS GET ROUGHER TREATMENT THAN WHITES
In shades of the profiling controversy that engulfed New Jersey State Police a few years ago, a U.S. Justice Department study finds black and Hispanic motorists nationwide are more likely than whites to be arrested and receive other harsh treatment from police. All three groups of motorists are equally likely to be stopped by police, but the similarities end there. After the stops, the study says, 5.8 percent of blacks and 5.2 percent of Hispanics were arrested vs. just 2 percent of whites; tickets were issued to Hispanics in 71.5 percent of the stops, to blacks in 58.4 percent and to whites in 56.5 percent; and handcuffs were used on 6.4 percent of the blacks and 5.6 percent of the Hispanics compared to 2.5 percent of whites. 8-25-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, AUGUST 25, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, AUGUST 25, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, AUGUST 26, 2005.


APPROVED FOR PUBLICATION
INSURANCE
BOMBA v. STATE FARM FIRE AND CASUALTY CO.
Appellate Division, A-5972-03T1, approved for publication August 25, 2005. (14 pages). Facts-on-Call Order No. 92638

In an action for coverage under a homeowners’ insurance policy for claims by two police officers who were injured by multiple gunshots fired by the insureds’ adult son, the motion court correctly applied the cause test to determine that there was a single occurrence under the policy — the insureds’ negligent supervision of their son — rather than a series of separate occurrences.

JUDGMENTS
FOLEY, INC. v. FEVCO, INC.
Appellate Division, A-6051-02T5, approved for publication August 25, 2005. (21 pages). Facts-on-Call Order No. 92639

The Law Division should have exercised its concurrent jurisdiction to hear the plaintiff’s challenge to the dischargeability of a debt before it vacated the plaintiff’s judgment against the defendants on the ground that the debt underlying the judgment had been discharged in a “no asset” bankruptcy before the judgment was entered.

JUDGMENTS
STRICKLAND v. 212 CORP OF N.J.
Law Division, Atlantic County, ATL-L-2367-03, approved for publication August 22, 2005. (12 pages). Facts-on-Call Order No. 92640

An attorney may distribute settlement proceeds directly to her client when a child-support judgment search conducted pursuant to N.J.S.A. 2A:17-56.23b indicates that there are no judgments docketed in New Jersey, even if the attorney has information that suggests that child-support arrears have accrued in another state, as long as the distribution occurs within 30 days of the judgment search.

CONTRACTS
CAPITAL ONE BANK v. MONGE
Law Division, Special Civil Part, Cape May County, CPM-DC-578-01, approved for publication August 22, 2005. (7 pages). Facts-on-Call Order No. 92641

A court may limit the award of prejudgment interest in a contract action where there has been a substantial delay in entering a judgment after the defendant’s default.

NOT APPROVED FOR PUBLICATION
HUSBAND AND WIFE
RAGAN v. RAGAN
Appellate Division, A-6657-02T5, August 25, 2005, not approved for publication. (22 pages). Facts-on-Call Order No. 18432

Amended judgment of divorce affirmed as modified to correct the award of attorney’s fees; the trial court did not err by awarding the plaintiff ex-wife $6,279 per month in permanent alimony; contrary to the defendant ex-husband’s arguments on appeal, (1) the trial court did not err by treating the parties’ 11-year marriage “as one of long enough duration to justify permanent alimony,” (2) the evidence supported the trial court’s decision to impute income to the ex-wife based on a 20- to 25-hour workweek at $8 an hour, (3) the ex-wife’s budget should not be adjusted by reductions in expenses for lawn care, restaurants, hair care, and vacations, and (4) the trial court did not err by considering the ex-husband’s post-divorce-complaint earnings when determining the amount of the alimony award; there was a “minor arithmetic error” in the trial court’s award of attorney’s fees and expert fees; the trial court’s conclusions regarding the interrelated issues of alimony and equitable distribution satisfied the “overarching concept of fairness.”

HUSBAND AND WIFE
MAGNOLA v. MAGNOLA
Appellate Division, A-1413-03T5, August 25, 2005, not approved for publication. (20 pages). Facts-on-Call Order No. 18433

Judgment of divorce in the parties’ second divorce from each other affirmed; contrary to the defendant ex-husband’s argument, the record did not reflect or suggest any partiality or bias on the part of the trial court; the trial court did not err in its valuation of the marital home, especially in light of the expert testimony about the relevance of a home’s condition to fair market value, evidence of the deteriorated condition of the home before the marriage, and the testimony about the ex-husband’s efforts to restore the home and to keep the mortgage current; although the trial court erred in its calculation of the various credits in connection with the home and a car loan, those errors did not undermine the equity of the distribution; the ex-husband did not demonstrate that the trial court had abused its discretion by failing to award him attorney’s fees because he did not provide the Appellate Division with a certification of services.

APPELLATE PROCEDURE
IN RE ESTATE OF JONES
Appellate Division, A-1818-04T2, August 24, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 18428

Appeal by the decedent’s child from a Probate Part order dismissed as interlocutory; the order was entered in a dispute among the decedent’s heirs about the right to buy the decedent’s home, and it denied without prejudice the application of the administrator of the decedent’s estate for directions; the Probate Part found that the record was insufficient for it to determine what directions to give; based on the procedural history, the appeal was interlocutory because it was not an appeal from a final judgment that resolved all of the issues as to all of the parties; moreover, the child had not sought leave to appeal, and the case was not an extraordinary one that required leave to be granted nunc pro tunc in the interests of justice.

MUNICIPAL CORPORATIONS
LESSER v. CITY OF CAPE MAY
Appellate Division, A-2300-04T1, August 24, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18427

Dismissal of the plaintiff taxpayer’s complaint that challenged the validity of the defendant City’s “stacked parking” ordinance under the Declaratory Judgment Act affirmed; the ordinance allows stacked parking only at Victorian hotels; the plaintiff owned property next to one of the three Victorian hotels in the City; contrary to the plaintiff’s arguments on appeal, the trial court properly held that the ordinance did not violate the Municipal Land Use Law or his equal protection rights under the New Jersey Constitution and the U.S. Constitution; the trial court also properly dismissed the complaint on ripeness grounds because the ordinance had not been applied to any of the Victorian hotels and because the one hotel that engages in “stacked parking,” which is the hotel next door to the plaintiff, does so as a pre-existing, nonconforming use and not under the authority of the ordinance.

PARENT AND CHILD
FLIORENT v. FLIORENT
Appellate Division, A-1097-04T1, August 24, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18430

Post-divorce-judgment order that required the defendant father to pay $18,004.84 in child support arrears through the Probation Department in weekly installments of $500 with a two-week bench warrant status affirmed; the parties’ property settlement agreement obligated the father to pay the parties’ son $50 per week plus tuition and book expenses through May 2001, but the father was derelict in his payments; an earlier order required him to pay $15,260.95 in arrears to the son, but the father “continued to flout court orders” until the arrears amounted to $18,004.84; the trial court properly found that the father’s “blatant disregard” for his obligations led him “to this point,” and there was no reason to interfere with the trial court’s discretion.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.E.
Appellate Division, A-2356-04T4, August 24, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18429

Order terminating the defendant mother’s parental rights to her 2-year-old son affirmed; the mother was “borderline” developmentally disabled and suffered from depression; the son had special needs, had been placed in foster care since he was born, and had not bonded with the mother; although the mother made “laudable efforts” to take advantage of the “ample” services provided by the plaintiff Division of Youth and Family Services, she still struggled to take care of herself and was incapable of taking care of the son; by clear and convincing evidence, the record supported the trial court’s conclusion that the termination of the mother’s parental rights was in the son’s best interests.

FROM THE ADMINISTRATIVE AGENCIES
PENSIONS AND BENEFITS
SILVERIO v. BOARD OF TRUSTEES OF THE POLICE AND FIREMEN'S RETIREMENT SYSTEM
OAL Docket No. TYP 11314-04, Agency Docket No. PFRS #75612, Initial Decision: June 13, 2005, Final Agency Decision: August 9, 2005. By Strauss, ALJ. (19 pages).

The Board of Trustees of the Police and Firemen’s Retirement System adopted the administrative law judge’s recommendation to grant the petitioner corrections officer’s application for accidental disability retirement benefits. The petitioner responded to a reported flood in a cellblock, shut off the water valves, and began to pick up garbage on the floor. The garbage contained a hidden hypodermic needle that punctured the petitioner’s right palm. The petitioner testified that he believed that the needle was infected and that he might have been exposed to HIV. In a case based on allegations of psychic injury, the ALJ concluded that the petitioner had suffered a traumatic event under Kane v. Board of Trustees, Police and Firemen’s Retirement System (1) because the petitioner’s encounter with the needle was not part of his normal work effort, (2) because the petitioner met with the needle involuntarily, and (3) because the needle stick equated to a “great rush of force” due to the petitioner’s objective and imminent fear for his life based on the risk of contracting AIDS.

PENSIONS AND BENEFITS
RUIZ v. POLICE AND FIREMEN’S RETIREMENT SYSTEM
OAL Docket No. TYP 1903-01, Agency Docket No. PFRS #3-10-26100, Initial Decision: July 5, 2005, Final Agency Decision: August 9, 2005. By Sukovich, ALJ. (30 pages).

The Board of Trustees of the Police and Firemen’s Retirement System adopted the administrative law judge’s recommendation to deny the petitioner police officer’s application for accidental disability retirement benefits. The application was filed in 2000 and was based on a 1992 incident in which the petitioner fatally shot a man who had run toward him with a machete. The ALJ found it unnecessary to reach the question of whether the petitioner had established a delayed manifestation of his disability because she concluded that the petitioner had not established that his disability was the direct result of the 1992 incident. Experts for both parties agreed that the petitioner was permanently disabled due to post-traumatic stress disorder, but the ALJ was persuaded by the opinion of the Board’s expert that the petitioner’s disability was caused in part by other “stressors,” including a motor vehicle accident involving the petitioner’s son and the sale of the family home. The ALJ found that the case law supported her conclusion and that Fiume v. Police and Firemen’s Retirement System was distinguishable because it did not implicate causative factors beyond the shooting incident.

PENSIONS AND BENEFITS
CORSO v. POLICE AND FIREMEN’S RETIREMENT SYSTEM
OAL Docket No. TYP 3818-04, Agency Docket No. 3-10-30115, Initial Decision: May 19, 2005, Final Agency Decision: August 9, 2005. By Weiss, ALJ. (15 pages).

The Board of Trustees of the Police and Firemen’s Retirement System adopted the administrative law judge’s decision to deny accidental disability retirement benefits to the petitioner patrolman. While performing his assigned duties, the petitioner was injured when he descended a series of steps. The slab top of one step “sprung up,” struck the back of the petitioner’s leg, and “threw” him, which caused him to lose his balance, land awkwardly, and stumble before he regained his balance. In concluding that the petitioner had not experienced a traumatic event, the ALJ found that the source of the petitioner’s injury resulted from the petitioner’s own conduct rather than from a “great rush of force” from an external source and that the medical evidence did not indicate that a “great rush of force” occurred.

PENSIONS AND BENEFITS
JORDAN v. POLICE AND FIREMEN’S RETIREMENT SYSTEM
OAL Docket No. TYP 4040-02, Agency Docket No. PFRS 3-69702, Initial Decision: July 7, 2005, Final Agency Decision: August 9, 2005. By Fidler, ALJ. (11 pages).

The Board of Trustees of the Police and Firemen’s Retirement System adopted the administrative law judge’s recommendation to grant the petitioner police officer’s application for ordinary disability retirement benefits. The Board had initially denied the petitioner’s application because he was not totally and permanently disabled from performing his duties. While pursuing a carjacking suspect on foot, the petitioner slipped and felt his right knee “pop.” The petitioner underwent surgery, but he testified that he continued to experience pain in his right knee, his lower back, his left knee, and his left ankle. The ALJ found that the petitioner’s mobility was limited by pain and that the petitioner testified credibly that he was still taking medication for pain that rendered him unable to perform police work. There was “a substantial difference” between the opinions of the petitioner’s expert and the Board’s expert, but the ALJ found that the opinion of the petitioner’s expert was “entitled to substantial weight.”


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