NEW JERSEY LAWYER

DAILY BRIEFING      09/12/2005


News Briefs

N.J. SUPREME COURT OPENS TERM WITH KEY CRIMINAL CASES
The state’s highest court inaugurates its 2005-06 term Monday and Tuesday with a series of oral arguments highlighted by two cases that will determine whether New Jersey motorists will have more protection from warrantless searches than is afforded under the federal constitution. Over the years, the New Jersey justices have read the state constitution’s search-and-seizure provision in a broader way than the U.S. Supreme Court has applied the Fourth Amendment. State v. Eckel and State v. Dunlap, which will be argued Tuesday, could determine whether that trend continuesk. The cases raise the issue of whether police can conduct warrantless searches of the passenger compartment as incident to an arrest, even if those arrested are outside the vehicle. The Appellate Division said such searches are improper. 9-9-05

SOME JERSEY FIRMS STARTING ROOKIES AT $100,000
Some New Jersey firms are cracking the $100,000 salary threshold for starting attorneys, but that still lags behind large metropolitan firms. A survey of firms here found salaries range from $85,000 to $115,00 for first-year associates. Leading the pack are two firms headquartered out-of-state: Pittsburgh-based Reed Smith, with offices in Princeton and Newark, at $115,000, and Philadelphia-based Fox Rothschild, with offices in Princeton and Atlantic City, at $110,000. The highest-paying home-grown firms are Sills Cummis Epstein & Gross in Newark at $105,000, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, also in Newark, and Morristown-based Riker Danzig Scherer Hyland & Perretti, $100,000 each. For a full story, see the Sept. 12 New Jersey Lawyer. 9-9-05

HISPANIC BAR REACHES OUT TO COMMUNITY
New Jersey’s Hispanic Bar Association and Hispanic Bar Foundation will reach out to the Spanish-speaking public by offering a seminar on key legal issues Saturday, Sept. 24, at Rutgers Law School-Newark. Speakers and panelists include Superior Court Judges Dennis Nieves and Mathias E. Rodriguez, both in Middlesex County, and Lourdes I. Santiago of Essex County. About 25 lawyers also will participate in seminars on topics that include immigration law, consumer rights, health care, and family and juvenile court matters. Lawyers are invited to showcase their practice and network with prospects. The seminar will take place from 8:45 a.m. to 2:45 p.m. For details call Liza M. Lopez, assistant counsel for the Newark school district, at (973) 223-6473. 9-9-05

JUDGE CODEY TO GET SAINT THOMAS MORE MEDAL
Essex County Judge Eugene J. Codey Jr. will be presented the Thomas More Medal during the annual Red Mass in Newark on Sunday, Sept. 25. Sponsors are Seton Hall University School of Law and its Thomas More Association. Codey, a 1974 graduate of Seton Hall Law School, served in private practice and as an assistant prosecutor in Essex County before joining the bench in 1991. He served in Essex’s criminal and civil divisions and most recently as presiding judge of the civil division. The Mass will start at noon at the Cathedral Basilica of the Sacred Heart, Newark, and lunch will follow at 2 p.m. at Mayfair Farms, West Orange. For more information and lunch reservations, call Deana Cynar, director of alumni relations for the law school, at (973) 642-8711. 9-9-05

DAUGHTER SUES MOTHER FOR ALLOWING RAPES BY STEPFATHER
A 19-year-old woman has filed a negligence suit in Cape May County alleging her mother allowed her stepfather to rape her. The assailant, Randall Venzie, is serving 67 years for his 2003 conviction for sexual assault and child endangerment, but charges against the mother, Charlotte Venzie, were dismissed. The daughter had testified her mother knew about the assaults, but did nothing to stop the rapes that began when she was 6 and continued 10 years. She claims she suffers emotional distress, mental anguish and anxiety as a result. 9-9-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, SEPTEMBER 9, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, SEPTEMBER 9, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, SEPTEMBER 12, 2005.


APPROVED FOR PUBLICATION
EMPLOYMENT DISCRIMINATION
MYERS v. AT&T
Appellate Division, A-1889-03T2, approved for publication September 9, 2005. (30 pages). Facts-on-Call Order No. 92660

In an employment discrimination action arising from the defendant employer’s termination of the plaintiff employee allegedly due to her cancer, the plaintiff’s proofs were sufficient to withstand summary judgment under the traditional pretext analysis set forth in McDonnell Douglas Corp. v. Green and, alternatively, under the mixed-motive analysis set forth in Desert Palace, Inc. v. Costa or the stricter standard of proof under Price Waterhouse v. Hopkins.

INSURANCE
CHARLES BESELER CO. v. O’GORMAN & YOUNG, INC.
Appellate Division, A-5163-03T5, approved for publication September 9, 2005. (14 pages). Facts-on-Call Order No. 92659

An exclusion in an employer’s liability insurance policy for a “bodily injury intentionally caused or aggravated by you” excludes coverage for an injury that was caused by an act that was intended to cause injury but not for an injury that was caused by a wrongful intentional act where injury is a substantial or virtual certainty.

CONSUMER PROTECTION
GROSS v. TJH AUTOMOTIVE CO., L.L.C.
Appellate Division, A-5630-03T1, approved for publication September 9, 2005. (22 pages). Facts-on-Call Order No. 92661

In an action arising from the plaintiff’s purchase of a vehicle from the defendant dealer, (1) the documentary fee of $137.50 assessed by the dealer did not violate the Consumer Fraud Act or its regulations and (2) the plaintiff’s allegations of common law fraud could not withstand summary judgment.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
DENNIS v. McAFEE
Appellate Division, A-998-04T5, September 9, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 18502

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the motion court (1) had concluded that the plaintiff failed to present evidence that his injuries had a significant impact on his life to overcome the subjective standard under Oswin v. Shaw and (2) had limited its findings to the plaintiff’s failure to meet the subjective standard but had noted that the plaintiff continued to suffer symptoms that had not healed and presented reports that indicated objective injury, including disc bulges, radiculopathy, carpal tunnel syndrome, and a rotator cuff tear; based on the New Jersey Supreme Court’s recent decision in DiProspero v. Penn, the Appellate Division summarily reversed and remanded for further proceedings in light of DiProspero.

VERBAL THRESHOLD
OLIVER v. MELVIN
Appellate Division, A-3936-03T1, September 9, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18503

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; despite the New Jersey Supreme Court’s recent decision in DiProspero v. Penn that held that a plaintiff is not required to show a serious life impact under AICRA, the Appellate Division affirmed because it agreed with the motion court’s finding that the plaintiff failed to provide objective credible evidence of “a verbal threshold injury”; the “myriad” of medical opinions about the causal relationship failed to establish a causal connection between the plaintiff’s lumbar symptoms and the accident.

SETTLEMENTS
PATH v. SCIESZKA
Appellate Division, A-1080-04T2, September 8, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 18498

Order memorializing a settlement and denial of the plaintiff estate administrator’s motion for relief from the order affirmed in an action arising from the administration and distribution of the decedent’s estate; after one witness testified at the bench trial, a settlement conference was conducted in chambers; the trial judge placed the resulting settlement on the record, and the order was prepared by the administrator’s attorney; the administrator sought relief under Rule 4:50-1 because he neither agreed to the settlement nor understood it; after reviewing the videotaped record of the settlement and the surrounding circumstances, the motion judge properly determined that the order encompassed “a detailed and informed resolution of the issues” and that there was no fraud or other compelling reason to set aside the settlement.

UNEMPLOYMENT COMPENSATION
GONZALEZ v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Appellate Division, A-1004-04T3, September 8, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18501

Board of Review decision that denied the petitioner substitute teacher’s request to reopen its earlier decision affirmed; the earlier decision affirmed the Appeal Tribunal’s finding that the petitioner was ineligible for unemployment benefits for the period of the respondent school district’s 2004 spring break; the petitioner worked for the district both before and after spring break; the Board correctly determined that the petitioner was ineligible for unemployment benefits during the district’s spring break under N.J.S.A. 43:21-4(g)(1) and (3) because she had reasonable assurance of re-employment with the district after spring break and because she actually was re-employed; the Board’s decision was supported by the record and was not arbitrary, capricious, or unreasonable.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.H.
Appellate Division, A-1967-04T4, September 8, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18500

Judgment that terminated the defendant father’s parental rights to his two daughters affirmed substantially for the reasons expressed by the trial court; among other things, the trial court found that the father had a “serious and chronic” drug abuse problem, had a “lengthy” criminal record, had visited with his daughters only sporadically, had failed to obtain stable housing or employment, had failed to cooperate with most of the services offered by the plaintiff Division of Youth and Family Services, and had no psychological bond with his daughters; the record “clearly and convincingly” supported the trial court’s findings and conclusions that the father was not a suitable parent and could not become one; contrary to the father’s arguments on appeal, the requirements of N.J.S.A. 30:4C-15.1(a) and New Jersey Div. of Youth & Family Services v. A.W. were satisfied.

CRIMINAL TRIALS
STATE v. CLARKE
Appellate Division, A-1721-03T4, September 8, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18499

Conviction following a guilty plea of third-degree possession of CDS and sentence to four years of imprisonment affirmed; the defendant was taken to the emergency room after he was shot, but he refused to remove his pants for the nurse to examine him; when the police lifted the defendant from the gurney and removed his pants, a black sock containing 37 vials of cocaine was found under his body; contrary to the defendant’s arguments on appeal, (1) the search was neither unreasonable nor illegal because he was not entitled to a reasonable expectation of privacy in the emergency room, (2) the emergency aid doctrine applied and constituted an exception to the warrant requirement, (3) the trial court properly found deterrence as an aggravating factor, and (4) the sentence 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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