NEW JERSEY LAWYER

DAILY BRIEFING      09/16/2005


News Briefs

MCCARTER PLANNING MOVE, BUT STAYING IN NEWARK
In keeping with its long-standing commitment to Newark — its headquarters since 1864 — the megafirm of McCarter & English has announced it will take over more than half of a 14-story high-rise planned for the new Riverfront Center. The firm has signed on for 250,000 square feet of office space. The home for the 375-lawyer firm has been at 4 Gateway Center for the past 15 years. McCarter partners said they were considering moving to Woodbridge to get some elbowroom, but decided to stick with Newark. Construction on the Matrix Development Group mixed-use project is scheduled to start early next year and be ready for McCarter to move in by the end of 2007. Newark officials long have praised the firm for sticking by the city, even when other law firms began moving out following the 1967 racial riots. 9-15-05

HELPING CLIENTS UNDERSTAND THE COURTS
The judiciary is giving lawyers a hand in helping clients understand the intricacies of the courts. The Administrative Office of the Courts has developed a “Guide to the Civil Courts” available in booklet form, on its website and in all state courts. The 29-page primer will “help litigants understand what’s happening in their case,” notes Michelle V. Perone, the civil courts chief. Designed for use by those not fully aware of what to expect, such as parties to suits, new lawyers and law students, it includes a glossary of legal terms and codes that distinguish case types. 9-15-05

RETIRED JUDGE PRESSLER TOPS LIST OF HONOREES FOR AIDING THE POOR
Retired Appellate Division Presiding Judge Sylvia B. Pressler is among 17 people to be honored Sept. 22 for helping deliver justice to the poor. The Legal Services Equal Justice Awards Reception, co-sponsored by Legal Services of New Jersey and the New Jersey State Bar Association, begins at 6 p.m. at the New Jersey Law Center in New Brunswick. Others receiving the most distinguished awards are Assembly Speaker Assemblyman Albio Sires (D-Hudson), and attorneys Michaelene Loughlin of Loughlin & Latimer in Hackensack and Jules S. Littman, who last year retired from Lomurro, Davison, Eastman & Munoz in Freehold. Equal Justice Medals citing pro bono efforts will go to Richard J. Borbe of Berlin; Gary Borger, John A. Jones and Thomas Kelley-Cain of Cherry Hill; Henry Gurshman of Metuchen; Philippe Durette, Raynard Yuro and Beryl Kuder of Whitehouse Station, Robert McLellan of Sparta; Bryan J. Perez of Newark; Ellen Radin of Scotch Plains; Joseph Riga of Maple Shade; Richard Wright of Manasquan; Brian D. Zinn; and the firms Subranni, Ostrove & Zauber in Atlantic City, and Norris, McLaughlin & Marcus in Somerville. Call Thomas A. Makin at (732) 572-9100 for details. 9-15-05

ASBESTOS FUND BLACKLISTS NINE DOCTORS, THREE SCREENERS
The Manville Personal Injury Settlement Trust, which compensates victims of asbestos exposure, has barred payments to claimants who rely on reports by nine doctors and three X-ray screening companies that the trust suspects of providing invalid information. The move, which will affect less than 2,000 current claimants, is intended to deter other doctors from assisting in filing questionable claims, said Jodye Marvin, general counsel to one of the trust’s subsidiaries. She added claims supported by documents from the nine doctors “simply were not reliable.” One of the doctors, Barry Levy of Sherborn, Mass., called the trust’s action “reactionary, knee-jerk and un-American.” The full list is on the trust’s website, claimsres.com. 9-15-05

PLEDGE OF ALLEGIANCE CONSTITUTIONALITY RESURFACES
Setting the stage for another U.S. Supreme Court review, a federal judge in Sacramento, Calif., has ruled that reciting the Pledge of Allegiance in public schools is unconstitutional. The decision came in a suit brought by a lawyer whose previous battle against the words “under God” was rejected by the Supreme Court on procedural grounds. Judge Lawrence Karlton ruled the pledge’s reference to one nation “under God” violates schoolchildren’s right to be “free from a coercive requirement to affirm God,” adding that he was bound by the 9th U.S. Circuit Court of Appeals’ 2002 ruling in favor of attorney Michael Newdow’s assertion that using the pledge in schools is unconstitutional. The Supreme Court last year dismissed that case, saying Newdow lacked standing because he did not have custody of his elementary school daughter on whose behalf he had sued. 9-15-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, SEPTEMBER 15, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, SEPTEMBER 15, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, SEPTEMBER 16, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON THURSDAY, SEPTEMBER 15, 2005.

NOT APPROVED FOR PUBLICATION
PARENT AND CHILD
PORGES v. PORGES
Appellate Division, A-2070-03T5, September 15, 2005, not approved for publication. (21 pages). Facts-on-Call Order No. 18528

Portions of two post-divorce-judgment orders affirmed in part and reversed in part; the parties’ Texas divorce decree provided that the plaintiff father would be responsible for the cost of their children’s college education; the Appellate Division reversed the portions (1) that required the parties’ son to repay his student loans because the father was responsible for his son’s college expenses and loan repayments under the earlier agreements and orders in this case and (2) that required the father to pay only 70 percent of the cost of his daughter’s SAT preparation courses because those courses could “fairly be deemed a college related expense” and because the father therefore was required to pay the entire cost; there was no basis to disturb the portion that denied the defendant mother’s request that the father pay for the son’s automobile insurance because she had waived any argument that the father was responsible for those costs as part of his obligation for college expenses.

CIVIL ACTIONS
TOWNSHIP OF RARITAN v. REPUBLIC SERVICES OF NEW JERSEY, LLC
Appellate Division, A-2665-03T1, September 9, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18509

Dismissal of the plaintiff Township’s declaratory judgment complaint on jurisdictional grounds affirmed in part and reversed in part; as to count one, which sought a declaration that an amendment to Hunterdon County’s Solid Waste Management Plan had expired, authority to revoke the amendment was vested by statute exclusively in the Department of Environmental Protection; as to count two, which sought to quiet title to a “paper street” that was dedicated as a public roadway and that was located on the land that the defendant solid waste facility operator sought to use, the Township’s allegation that it had accepted part of the roadway as a public street “many years” after the dedication was sufficient to establish the jurisdictional prerequisite of peaceable possession.

EMPLOYMENT LAW
ARCOLA SALES & SERVICE CORP. v. KELLY
Chancery Division, Bergen County, September 9, 2005, released September 13, 2005, not approved for publication. By Doyne, J. (17 pages). Facts-on-Call Order No. 18523

Request by the plaintiff bus seller for preliminary restraints against the defendant salesman and the defendant competitor in an action based on a non-compete agreement between the salesman and the seller denied; the agreement expired 12 months after the seller terminated the salesman, who began working for the competitor within that time period; among other things, the seller sought to prevent the salesman from continuing to work for the competitor; the seller was not entitled to relief because it had not satisfied all four parts of the Crowe v. De Gioia test for preliminary injunctive relief; the seller did not demonstrate a reasonable probability of success on the merits because the facts were controverted as to the circumstances of the salesman’s signing of the agreement, the geographic location of the salesman’s territory, the reason for the salesman’s termination, and the circumstances of the salesman’s hiring by the competitor.

ESTATES AND TRUSTS
IN RE ESTATE OF FENTON
Chancery Division, Bergen County, BER-P-402-04, September 9, 2005, released September 13, 2005, not approved for publication. By Doyne, J. (13 pages). Facts-on-Call Order No. 18526

In a will contest between the plaintiff second wife of the decedent and the defendant sons from the decedent’s earlier marriage, the Chancery Division (1) allowed the sons discovery of an application for Social Security benefits for the wife’s children, specific financial documents, the wife’s application for a mortgage after the decedent’s death, and the cellular telephone numbers of the wife and the man with whom she allegedly engaged in adultery but (2) denied discovery of the wife’s passport, her divorce complaint against her prior husband, her income tax returns, and her bank statements covering a 10-year period; the sons lacked standing to attack the wife’s earlier divorce, but they were entitled to support their claims that the wife committed misappropriation and conversion, to establish the appropriate credit against the wife’s elective share of the decedent’s estate, and to rebut the wife’s allegation that the sons’ undue influence prevented her from being the recipient of the estate.

EMINENT DOMAIN
BOROUGH OF MILFORD v. ARNOLD
Law Division, Hunterdon County, HNT-L-733-02, released August 26, 2005, not approved for publication. By Buchsbaum, J. (22 pages). Facts-on-Call Order No. 18479

Amount of land identified by the plaintiff Borough for condemnation found accurate; the Borough initiated an action to condemn 5,296 square feet for road purposes, but it amended its complaint to condemn only about 2,900 square feet after it learned that deeds from 1867 and 1893 provided public rights in some of the proposed right-of-way; the defendant landowner contended that the Borough had to condemn about 6,800 square feet; the Borough correctly identified the area subject to condemnation (1) because there was a permanent dedication of part of the landowner’s property based on the language of the deeds, (2) because the Borough’s actions did not constitute an effective abandonment of the dedication, and (3) because the parts of the right-of-way that were dedicated in 1867 and 1893 were accepted, even though the record contained “some controverted evidence” on that issue.

FROM THE ADMINISTRATIVE AGENCIES
COMMUNITY AFFAIRS
DEPARTMENT OF COMMUNITY AFFAIRS, BUREAU OF ROOMING AND BOARDING HOUSE STANDARDS v. DeSANTO
OAL Docket No. CAF 4756-04, Agency Docket No. RBHS-240-04/#0812-0003, Initial Decision: August 10, 2005, Final Agency Decision: August 31, 2005, released for publication September 8, 2005. By Schuster, ALJ. (9 pages).
The Acting Commissioner of the Department of Community Affairs adopted as his final decision the initial decision of the administrative law judge with modifications in an action involving the operation of a rooming house. The respondent homeowners appealed from a $5,000 fine imposed by the Department for operating a rooming house without a license after December 15, 2003 and for failing to pay a fine pursuant to a settlement agreement. The settlement agreement resulted from an earlier fine for operating a rooming house without a license and required the homeowners to pay a reduced fine of $2,000 in monthly installments of $150 and to either obtain a license or remove all but one of their tenants before December 15, 2003. In the event of a breach, the homeowners became liable for the full $5,000 penalty, minus any payments they had already made. The ALJ found that the homeowners had made only three payments, never had applied for a license, and had more than one tenant after December 15, 2003; therefore, he assessed a fine of $4,550. The ALJ refused to impose an additional $5,000 penalty based on the continuing operation of a rooming house without a license, but the Acting Commissioner rejected the ALJ’s holding that the Department had not charged the homeowners with a continuing violation and upheld the assessment of an additional $5,000 penalty against the homeowners.

COMMUNITY AFFAIRS
ESLAND ACQUISITION LLC v. BUREAU OF HOMEOWNER PROTECTION, NEW HOME WARRANTY PROGRAM
OAL Docket No. CAF 4275-01, Agency Docket No. BHP-480-01-5/NH-84-01, Initial Decision: June 22, 2005, Final Agency Decision: August 8, 2005, released for publication August 30, 2005. By Wells, ALJ. (30 pages).

The Acting Commissioner of the Department of Community Affairs adopted as his final decision the administrative law judge’s initial decision, which rescinded the Notice of Violation and Order of Suspension that the Department sent to the petitioner registered new home builder. The suspension was based on the builder’s alleged violation of the New Home Warranty and Builders’ Registration Act for its failure to correct or settle claims of construction defects in a home that it built. The ALJ concluded that the suspension was not justified because the builder could not be found to be in default and because its responsibility for the claims under N.J.A.C. 5:25-2.5(b) had not been established. The ALJ found (1) that the administrator of the builder’s warranty coverage and the administrator’s arbitration service were responsible for “significant and material deviations” from the claims process set forth in the warranty coverage documents, (2) that the homeowner should have been deemed to have discontinued his claim, (3) that, even if a final arbitration decision was binding on the builder despite the deviations, the builder acted in good faith and reasonably in its attempts to satisfy the homeowner, (4) that the homeowner failed to cooperate with the builder and thwarted the builder’s attempts to satisfy the homeowner, and (5) that the administrator’s monetary settlement with the homeowner was “self-serving,” was unreasonable, and was not supported by the facts.


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