NEW JERSEY LAWYER

DAILY BRIEFING      08/05/2005


News Briefs

THIRD CIRCUIT SAYS BOARD CAN’T SUE UNDER FEDERAL EDUCATION LAW
The Lawrence Township Board of Education has no right to sue the state under the Individuals with Disabilities Education Act (IDEA) for the costs of placing a youngster with autism in a residential facility. The Lawrence schools paid $235,000 for the 2003-04 year for the youngster’s placement. Writing for the court in Lawrence Township Board of Education v. State of New Jersey, Judge Maryanne Trump Barry said, “Congress intended to provide a private right of action only to disabled children and their parents. A budgetary dispute between local and state agencies is simply not among the private actions contemplated by the IDEA.” (A full text of Lawrence Township, Facts-on-Call Order No. 92611, can be ordered from NJL Online or by calling 800-670-3370.) 8-4-05

SERVICES FOR DONALD J. CUNNINGHAM, RETIRED MONMOUTH JUDGE
A Mass will be offered Saturday for retired Superior Court Judge Donald J. Cunningham, who served in various state bench levels in Monmouth County from 1973 to 1986. He died Monday at age 79. He also was a municipal judge in Millstone, a municipal attorney in several townships and spent five years as Monmouth County surrogate, which included a term as president of the New Jersey Surrogates Association. The Bradley Beach resident and World War II veteran began his career with the former Durand, Ivins and Carton in Asbury Park. The Mass will be at 9:30 a.m. at the Church of St. Elizabeth in Avon-by-the-Sea. Survivors include his son Michael K. Cunningham, an assistant Monmouth County prosecutor. Memorial donations be sent to the Bradley Beach First Aid Squad, 725 Main St., Bradley Beach, N.J. 07720. 8-4-05

N.J. SUPREME COURT NEEDS A LITTLE LESS PAPER
Here’s a court rule change that might make life a little easier for lawyers and a bit longer for trees. Effective immediately, parties petitioning for New Jersey Supreme Court certification and those responding to petitions must initially send only four copies of certain required documents, down from nine that had been required. However, if certification is granted, parties must send an additional five copies of their briefs and appendices. The court still requires nine copies of briefs and appendices on appeals as of right or motions. Supreme Court Clerk Stephen W. Townsend says the change should reduce litigants’ costs for photocopying and delivery. For more information, call the clerk’s office docket unit at (609) 292-4837. 8-4-05

MUNICIPAL JUDGE FACES HARASSMENT ALLEGATION
Trenton Municipal Judge Louis S. Sancinito is on the other side of the bench as a defendant against a neighbor’s allegation he harassed her. In a suit scheduled to be heard Aug. 17 in Mercer County Superior Court, Judith Meadows-Jones alleges Sancinito used his position as a judge to drive her from a Trenton neighborhood where they were neighbors. The woman claims Sancinito filed charges against her daughter after one of the girl’s friends clipped the lawyer’s parked car and drove away. She further alleges Sancinito’s wife e-mailed neighbors asking them to complain to police and her landlord, alleging noise and possible gang activity at her home. Meadows-Jones now lives in Camden. 8-4-05

ACCOUNTING FIRM TO FIGHT $120 MILLION JURY AWARD
PricewaterhouseCoopers plans to fight a $119.9 million award by a jury before senior U.S. District Judge Harold A. Ackerman in Newark. The money was awarded to creditors of the defunct Ambassador Insurance Co. who accused its management and its auditor, PricewaterhouseCoopers, with covering up weak financial conditions and mismanagement that led to the company’s insolvency in the late 1980s. The North Bergen company was incorporated in Vermont. Still to be determined is the apportionment of responsibility between the Big Four accounting firm and co-defendant, the estate of the late Arnold Chait, Ambassador’s president. “The verdict is inconsistent with the facts. We intend to challenge,” said accounting firm spokesman Steven G. Silber. 8-4-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, AUGUST 4, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, AUGUST 4, 2005:

LAND USE
JOCK v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF WALL
New Jersey Supreme Court, A-72, August 4, 2005. (49 pages). Facts-on-Call Order No. 92613

In a case arising from an application for bulk and use variances to develop an isolated undersized lot, (1) there was no merger of the lot with an adjacent lot under Loechner v. Campoli because the lots always were titled in legally separate parties and (2) a hardship variance was not precluded because the hardship on the lot was not created by either the current owner of the lot or its predecessors in title.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, AUGUST 5, 2005.



APPROVED FOR PUBLICATION
PARENT AND CHILD
GROVER v. TERLAJE
Appellate Division, A-6543-03T5, approved for publication August 4, 2005. (15 pages). Facts-on-Call Order No. 92614

In the context of an appeal from the custody provisions of an amended final domestic violence restraining order, (1) the presumption in favor of awarding custody to the “non-abusive spouse” under N.J.S.A. 2C:25-29b(11) applies to both legal and physical custody, but it weakens as time passes without conduct that jeopardizes the non-abusive spouse or the child, and (2) the procedures set forth in Kanaszka v. Kunen should be followed to review the prior proceedings.

LANDLORD AND TENANT
CHATTERJEE v. IERO
Law Division, Burlington County, DC-5728-04, approved for publication August 2, 2005. (8 pages). Facts-on-Call Order No. 92615

This residential lease violated N.J.S.A. 46:8-21.2 by requiring security in excess of one and a half months’ rent in the form of a “pet security” or a “pet deposit.”

LAND USE
ACORN MONTESSORI SCHOOL v. BETHLEHEM TOWNSHIP PLANNING BOARD
Law Division, Somerset County, HNT-L-21-04, approved for publication August 2, 2005. (32 pages). Facts-on-Call Order No. 92616

A private Montessori school can operate pre-kindergarten, after-school, and summer school programs in a residential zone in which schools are allowed, but it may not maintain an apartment for a superintendent on the premises.

PUBLIC MEETINGS
CARLEY v. BOROUGH OF NORTH PLAINFIELD
Law Division, Somerset County, SOM-L-1877-04, approved for publication August 2, 2005. (12 pages). Facts-on-Call Order No. 92617

The failure to fill a vacancy on a municipal governing body within the N.J.S.A. 40A:16-11 time limit due to violations of the Open Public Meetings Act cannot be remedied under N.J.S.A. 10:4-15.

NOT APPROVED FOR PUBLICATION
PRODUCTS LIABILITY
KRONFELD v. NOVARTIS CONSUMER HEALTH, INC.
Appellate Division, A-4321-03T2, August 4, 2005, not approved for publication. (23 pages). Facts-on-Call Order No. 18327

Judgment of no cause of action for the defendant pharmaceutical manufacturers and distributors in a products liability action and denial of the plaintiff’s motion for a new trial affirmed; the plaintiff claimed that she suffered a hemorrhagic stroke caused by the ingestion of Tavist-D, which is a cough and cold preparation; the defendants denied that there was a causal connection between an ingredient of Tavist-D and strokes; contrary to the plaintiff’s arguments, (1) she was not deprived of a fair and impartial jury, (2) the defendants presented sufficient credible evidence to support the jury verdict of no defective design, and (3) the jury instruction on failure to warn “fairly encompassed” the applicable principles of law governing the claim and was sufficient to help the jury in its deliberations on the issue.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.S.
Appellate Division, A-3206-04T4, August 4, 2005, not approved for publication. (24 pages). Facts-on-Call Order No. 18328

Order terminating the defendant mother’s parental rights to her son and placing him in the care and guardianship of the plaintiff Division of Youth and Family Services affirmed; contrary to the mother’s arguments on appeal, the Family Part (1) properly analyzed the effect of her history of mental illness and (2) properly found that the services provided to her by DYFS were reasonable in light of her mental illness; the evidence “amply” supported the Family Part’s findings and conclusions.

CRIMINAL TRIALS
STATE v. NEWELL
Appellate Division, A-1535-03T4, August 4, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18326

Convictions following a guilty plea to first-degree carjacking, second-degree eluding, and fourth-degree hindering apprehension affirmed; a few days before his scheduled trial date, the defendant sought to adjourn the trial because he decided to retain an attorney in private practice to represent him, rather than the attorney who had been assigned to him by the Public Defender’s Office; contrary to the defendant’s arguments on appeal, (1) the trial court did not err by denying his request for an adjournment of the trial and (2) the sentence imposed following his guilty plea was not excessive.


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Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


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