NEW JERSEY LAWYER

DAILY BRIEFING      09/23/2005


News Briefs

REFUNDS APPROVED FOR MUNICIPAL JUDGE’S STIFF FINES
Refund checks will be mailed soon to 11 motorists improperly sentenced by Henry G. Broome Jr., a part-time municipal judge in eight Atlantic County communities whose overzealous sentencing prompted a recent review by the Administrative Office of the Courts. Louis J. Belasco Jr., Atlantic County’s municipal courts chief judge, decided to reduce fines that averaged $590 after a hearing with the motorists this week. They were arrested for having a blood alcohol content that exceeded the allowable percentage for motorists under age 21. Broome, a Northfield solo, imposed fines for adult drunken driving violations, according to the Press of Atlantic City. 9-22-05

NEW JERSEY’S HEROIN ABUSERS NOT SEEKING TREATMENT
Heroin is in steady supply in New Jersey and many abusers are not seeking treatment, a new study has found. “We have the best and cheapest heroin in the country. It’s easy to get and easy to get high,” said Carolann Kane-Cavaiola, assistant commissioner of the Department of Human Services. Its Division of Addiction Services plans to open two more heroin treatment clinics, its first expansion of that program in more than 10 years. 9-22-05

LAWYER TRIES TO COLLECT JUDGMENT AGAINST COP KILLER
After reaching a $250,000 settlement in a wrongful death suit against convicted cop killer Thomas Trantino, Paramus attorney Michael I. Lubin now faces the task of collecting. Lubin, who represents the family of the late Lodi police officer Gary Tedesco, plans to depose Trantino to determine his net worth, which could be more than minimal because the convicted murderer has had his autobiography published and later reprinted in Japan. Additionally he sold paintings during his 38 years in prison for the 1963 murders of Tedesco and Peter Voto. Voto’s family also settled with Trantino for $250,000. Trantino, who has lived in Camden since his 2002 parole and works as a counselor to ex-inmates, is claiming he cannot afford to pay. 9-22-05

APPLYING ADR TO EMINENT DOMAIN ISSUES
A high-ranking Republican senator wants to establish a federal property rights ombudsman authorized to order arbitration or mediation for property owner disputes in eminent domain matters. Sen. Orrin Hatch, a member of the Senate Judiciary Committee and former head of that panel, said his bill would create a federal program similar to one in his home state Utah. The bill, which would amend a 1970 law on property acquisitions, apparently is in response to a recent Supreme Court ruling that expands governments’ right to use eminent domain for private development projects. 9-22-05

$335 MILLION PAYDAY FOR LAWYERS IN WORLDCOM CASE
Plaintiffs’ lawyers in the Worlcom case that concluded this week in federal court in the Southern District of New York have been awarded $335 million in fees. The plaintiffs earlier were awarded $6.1 billion; this week U.S. District Judge Denise Cote approved another $3.5 billion for the plaintiffs and fees to Philadelphia-based Barrack, Rodos & Bacine and New York’s Bernstein Litowitz Berger & Grossmann. Cote based her fee awards on the firms’ retainer agreements, public policy considerations and the “superior quality” of the firms’ 277,862 hours of work. The plaintiffs — more than 800,000 individuals and institutions that owned stock in the former Worldcom — sought damages from losses resulting from the company’s financial fraud. 9-22-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, SEPTEMBER 22, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, SEPTEMBER 22, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, SEPTEMBER 23, 2005.


APPROVED FOR PUBLICATION
LAND USE
BAILES v. TOWNSHIP OF EAST BRUNSWICK
Appellate Division, A-2132-03T5, approved for publication September 22, 2005. (35 pages). Facts-on-Call Order No. 92673

Zoning ordinances that increased the minimum lot size in the defendant Township’s rural preservation district from one unit per acre or per two acres to one unit per six acres are invalid as applied to the plaintiff’s properties because the “downzoning” was not required by environmental constraints or the other stated purposes of the ordinances and did not reasonably conform to the character of the existing development of the surrounding areas.

LAND USE
NEW JERSEY FARM BUREAU, INC. v. TOWNSHIP OF EAST AMWELL
Appellate Division, A-912-02T2, approved for publication September 22, 2005. (17 pages). Facts-on-Call Order No. 92674

The zoning ordinance that increased the minimum lot size in the defendant Township’s agricultural district from three acres to 10 acres is valid because it is reasonably related to the legitimate zoning objective of encouraging agricultural use and preserving farmland. Under Mount Laurel II, a municipality that has discharged its obligations regarding housing for low- and moderate-income households has no constitutional obligation to provide for a variety of other forms of housing through zoning.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
SARGENTELLI v. SINGH
Appellate Division, A-752-04T1, September 22, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18552

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; before his 2001 automobile accident with the defendant driver, the plaintiff was involved in a bicycle accident in 1993 and an automobile accident in 1999; the reports submitted by the plaintiff’s chiropractor contained a “conclusory statement” that attributed 50 percent of the plaintiff’s injuries to the 1999 accident and 50 percent of his injuries to the 2001 accident, but the reports did not contain any other reasons for the chiropractor’s allocation; the trial court correctly determined that the chiropractor’s comparative analysis was inadequate to satisfy the Polk v. Daconceicao standard.

VERBAL THRESHOLD
DeMAIO v. DeGROSS
Appellate Division, A-6852-03T5, September 22, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18553

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court granted summary judgment because the plaintiff had not presented evidence that his injuries had a significant impact on his life; reversal and remand was required in light of the New Jersey Supreme Court’s recent decision in DiProspero v. Penn, which held that a plaintiff does not have to demonstrate a serious life impact under AICRA; contrary to the defendants’ argument on appeal, the trial court correctly observed that the plaintiff’s medical proofs established objective evidence of an injury related to the accident; the plaintiff’s proofs and his physician’s certification adequately established a permanent injury that was sufficient to survive a summary judgment motion.

VERBAL THRESHOLD
HELMINSKI v. BURAK
Appellate Division, A-1691-04T2, September 22, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18554

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA remanded for reconsideration in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano; the Appellate Division did not read the trial court’s opinion “as passing on anything but the ‘second’ or ‘substantial life impact’ prong of the verbal threshold,” which had been struck down by DiProspero and Serrano; as to the first prong, the plaintiff’s second MRI indicated no evidence of a herniated disc or spinal stenosis as well as a normal thoracic cord, but an MRI taken three days earlier revealed “C3-C4 bulging annulus with slight indentation of the ventral surface of the thecal sac” and a straightening of the cervical spine; although the physician’s certificate of permanency referred to the earlier MRI, that certificate was not dispositive on a summary judgment motion under Rios v. Szivos.

INSURANCE
SELBST v. CERTAIN UNDERWRITERS AT LLOYD’S LONDON
Appellate Division, A-5140-03T3, September 21, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 18551

Jury verdict of no cause of action on the plaintiff insured’s complaint that the defendant insurer breached a contract and handled her claim in bad faith when it failed to pay $1 million in total disability benefits affirmed; the insured purchased the disability insurance policy in 1993, left work in 1996 due to her mental condition, and exhausted her 60 months of temporary disability benefits under the policy; the complaint was filed in 2002 after the insured’s unsuccessful efforts to obtain the total disability benefits through the policy’s referee procedure; the jury concluded that the insured did not satisfy the policy’s definition of “permanently totally disabled”; contrary to the insured’s arguments on appeal, (1) the insurer was not estopped from enforcing the “permanently totally disabled” provision, (2) the insurer’s handling of the claim did not cause the spoliation of evidence, and (3) the trial court did not err by instructing the jury to apply the policy’s definition of “permanent total disablement,” which was not ambiguous.

JUDGMENTS
TEACHING CONCEPTS, INC. v. HELLER
Appellate Division, A-4928-03T5, September 21, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18550

Denial of the defendant debtor’s motion to vacate a 1988 New York judgment against him that was docketed in New Jersey by the plaintiff creditor about 16 years later affirmed; contrary to the debtor’s arguments on appeal, (1) under New York law, a judgment remains active and is subject to enforcement for 20 years, not 10 years, and the creditor therefore was not time-barred from filing an enforcement action and (2) the information that the debtor provided regarding two alleged post-judgment no-asset bankruptcy proceedings was insufficient to support a conclusion that the 1988 judgment was discharged in bankruptcy.

CIVIL PROCEDURE
WARREN COUNTY BAR ASSOCIATION v. BOARD OF CHOSEN FREEHOLDERS
Law Division, Mercer County, MER-L-2091-05, September 9, 2005, released September 16, 2005, not approved for publication. By Feinberg, A.J. (15 pages). Facts-on-Call Order No. 18533

Complaint in lieu of prerogative writs filed by the plaintiff Warren County Bar Association and the plaintiff taxpayer for an order to compel the defendant Warren County Board of Chosen Freeholders to provide “safe, healthful and suitable courtrooms and facilities” dismissed for failure to state a cause of action; the plaintiffs alleged that the County court facilities are overcrowded, are in disrepair, and no longer are adequate for the County’s population and that there are no plans to remedy the conditions; judicial intervention was inappropriate (1) because N.J.S.A. 2B:6-1, which requires each county to provide suitable court facilities, does not create a private cause of action, (2) because the relief sought was inconsistent with the separation of powers doctrine established by the New Jersey Constitution, and (3) because the plaintiffs “in essence” sought mandamus relief, which was not supported by the facts; the Law Division “strongly” encouraged the assignment judge for the County and the Board to meet within 30 days to resolve the issues raised in the complaint, and it suggested that the arbitration procedures set forth in Rule 1:33-9 be used if there is no agreement or progress.

REAL PROPERTY
HEISSLER v. SOUTH GATE MARINA
Chancery Division, Ocean County, C-259-03, September 8, 2005, released September 14, 2005, not approved for publication. By Clyne, P.J. (8 pages). Facts-on-Call Order No. 18529

Specific performance of a contract to purchase waterfront property granted to the plaintiff buyers; a post-contract title search revealed liens on the property, and the seller did not appear at the closing; after the buyers obtained the release of an IRS lien, the seller declared the contract void pursuant to a provision that allowed cancellation if post-contract damage to the property exceeded $50,000; the buyers were entitled to specific performance (1) because the seller could not declare the contract void on the ground that the liens exceeded its anticipated net proceeds, (2) because the seller did not fulfill its duty of good faith and fair dealing in its efforts to remove the liens, (3) because the liens did not render the seller unable to close and entitled to cancel the contract and return the deposit, (4) because the seller intentionally failed to fulfill its contractual duties and the buyers’ remedy therefore was not limited to a refund of their deposit, and (5) because there was insufficient evidence of post-contract damage to the property to allow the seller to cancel.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
T.M. v. WASHINGTON TOWNSHIP BOARD OF EDUCATION
OAL Docket Nos. EDS 2040-05 and EDS 2194-05, Agency Docket Nos. 2005 9869 and 2005 9899, Final Agency Decision: August 24, 2005, released for publication August 31, 2005. By Stein, ALJ. (13 pages).

The administrative law judge ordered that the petitioners’ son be returned immediately to his placement at the respondent Board of Education’s high school following his suspension and expulsion and that the Board perform a child study team evaluation of the son, which should include a psychiatric assessment. The son was suspended after a consensual search of his book bag yielded a vial that was initially believed to be radioactive but was later determined to have been used to produce a simulation of a cloud chamber and possibly to have been part of a child’s chemistry test. The petitioners sought their son’s return to his regular high school placement, but the Board sought an out-of-district placement for the son. The ALJ affirmed the determination that the son’s behavior was not a manifestation of his disability, and he found that the son should be returned to his regular high school placement (1) because the son had not intended to disrupt the high school or to cause harm, (2) because the son had not violated the Board’s code of conduct, (3) because the violation that the son came closest to committing was punishable by a one-day suspension for a third offense, (4) because the son had not shown the vial to anyone and had not told anyone about it, and (5) because there was undisputed medical evidence that the son was not a danger to himself.


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