NEW JERSEY LAWYER

DAILY BRIEFING      09/26/2005


News Briefs

SUPREME COURT CASE COULD IMPACT CLIENT PROTECTION FUND
In a matter with major implications for the financial health of the New Jersey Lawyers’ Fund for Client Protection, the Supreme Court will hear arguments Wednesday in a case regarding checks forged by unethical lawyers, typically for settlements to clients. In New Jersey Lawyers’ Fund for Client Protection v. Pace, the high court will review how long the fund, to which clients assign their rights, has to collect against banks that honor the forgeries. Pointing to the Uniform Commercial Code, Summit Bank argues that the fund must bring a collection action within three years of when a check is accepted, while the fund says the time should not start running until discovery of the checks’ conversion. 9-23-05

HOENS, CHAGARES LEAD THE PACK FOR 3RD CIRCUIT JUDGESHIP
Appellate Division Judge Helen E. Hoens and Michael A. Chagares, former chief of the Civil Division of the U.S. Attorney’s Office in Newark, are being viewed as frontrunners for a vacancy on the 3rd U.S. Circuit Court of Appeals. Others in the field for one of most prestigious positions available to members of the state’s legal community include U.S. District Judge William J. Martini in Newark. The appointment is likely to be the subject of intense politicking. A full story is in the Sept. 26 New Jersey Lawyer. 9-23-905

JUDICIARY PANEL CONSIDERING JUDGESHIP FOR FORMER CASINO COUNSEL
The state judicial nomination of Bernard E. DeLury Jr., a former powerhouse among Atlantic City’s gaming industry attorneys, is being taken up Monday by the Senate Judiciary Committee. DeLury, nominated to the bench in June by acting Gov. Richard J. Codey, is a former general counsel of Caesar’s Entertainment credited with helping guide the company’s growth into one of the world’s largest gaming concerns. He left the position upon Caesar’s June 13 merger with Harrah’s Entertainment. 9-23-05

CONSULTANT SAYS ASBESTOS FUND WOULD BE FINANCIAL SINKHOLE
Plans Congress is considering for a trust fund for asbestos injury settlements would create a program that would quickly run out of money, according to the Bates White consulting firm. A recent report by the Washington-based group criticizes the proposed Fairness in Asbestos Injury Resolution Act for creating additional categories of claimants that could mean a tenfold increase in the number of claims and drain the proposed $140 billion fund “a few years after its enactment.” 9-23-05

A KISS ON THE LIPS NOT SO CONTINENTAL IN INDIA
India may be the land of the ancient treatise on sex, the Kama Sutra, but don’t plan on taking a passion-filled vacation there. An Israeli couple last week was fined 500 rupees (about $12 U.S.) each for kissing and embracing after getting married in a Hindu ceremony in a temple in the northwestern India town Pushkar. The couple apparently fell more in love while vacationing there and decided to marry before returning home, according to the Israeli Embassy in New Delhi. Temple priests became so enraged at the smooching while they were chanting that they filed a police complaint. The couple was charged with indecency and ordered to pay the fine or spend their honeymoon in jail — presumably in separate cells. 9-23-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, SEPTEMBER 23, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, SEPTEMBER 23, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, SEPTEMBER 26, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON FRIDAY, SEPTEMBER 23, 2005.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
ROSA v. VALLE
Appellate Division, A-6492-03T1, September 23, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18558

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; after arbitration and the defendant’s demand for a trial de novo, the plaintiff moved for summary judgment to strike the defendant’s defense that the plaintiff had not satisfied the verbal threshold; at oral argument, the defendant conceded that the plaintiff had a qualifying injury; the trial court granted summary judgment for the defendant because the plaintiff had not established that her injuries had a serious impact on her life; reversal and remand were required in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, which held that a plaintiff may satisfy the verbal threshold without showing that her injury from an automobile accident had a serious impact on her life.

VERBAL THRESHOLD
PETRILLO v. DRAKE
Appellate Division, A-7011-03T1, September 23, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18557

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; before his accident with the defendant in 2000, the plaintiff had suffered injuries in 1989, 1995, 1996, and 1998; contrary to the plaintiff’s argument on appeal, the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano did not alter the Polk v. Daconceicao requirement that a plaintiff present a comparative analysis of his pre-accident injuries and his post-accident complaints; the trial court correctly determined that the opinions of the plaintiff’s medical expert failed to include a comparative analysis that conformed to the “letter and spirit” of Polk; to the extent that the expert’s reports compared the plaintiff’s physical condition before and after the 2000 accident, they did so “only in a conclusory way.”

ESTATES AND TRUSTS
IN RE ESTATE OF TAMBOR v. ROSENBAUM
Appellate Division, A-1541-04T3, September 23, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18560

Judgment approving the final accounting of the estates of two decedents affirmed; after the decedents’ daughter filed caveats against the probate of their wills, the defendants, who were named as co-executors and co-trustees under the wills, agreed to renounce their positions; after the administrator c.t.a. of the estates filed a verified complaint for settlement of the final accounts and for a final account for each estate, the defendants filed exceptions to the accounting, including a claim that a parcel of real estate was “significantly undervalued”; however, the defendants had waited several months after the proposed valuation of the property before objecting to it; the proofs supported the Probate Part’s denial of the defendants’ exceptions and its judgment approving the accounting.

HUSBAND AND WIFE
GONYEA v. DAVIS
Appellate Division, A-6485-02T2, September 23, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18561

Post-divorce-judgment order that required the defendant ex-husband to pay child support and college expenses and that enforced the equitable distribution of the family business affirmed; after the ex-husband had a fair opportunity to purchase the business and did not do so, and after the business was listed for sale to no avail, the trial court ordered the valuation of the business so that it could be sold to the plaintiff ex-wife; based on a stipulation in the parties’ judgment of divorce, the trial court ordered that the valuation should not consider the ex-husband’s claims for the repayment of loans from his inheritance to the business; there was no merit to the ex-husband’s challenges; the trial court correctly determined that the stipulation was included in the judgment without the specific intent that it was to apply only if the ex-husband purchased the business.

PARENT AND CHILD
DiGIACOMO v. TOFF
Appellate Division, A-2291-04T2, September 23, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18559

Order granting the defendant mother’s application for unsupervised visitation with the parties’ daughter affirmed substantially for the reasons expressed by the trial court; the plaintiff father’s objection to unsupervised visitation stemmed primarily from his concerns about the mother’s alleged emotional problems and from allegations of child abuse that the Division of Youth and Family Services had investigated; the trial court “thoroughly reviewed” the mother’s recent psychological evaluations and the DYFS reports and found no grounds to deny unsupervised visitation; on this record, there was no basis to disturb the visitation order; it was significant that the father’s attorney did not object to unsupervised visitation; any issues that arose from events after the visitation order was entered must be addressed in a properly documented formal motion to the trial court.

MEDICAL MALPRACTICE
MURPHY v. IMPLICITO
Appellate Division, A-3172-03T3, September 22, 2005, not approved for publication. (25 pages). Facts-on-Call Order No. 18556

Dismissal of the complaint in a medical malpractice action at the close of the plaintiff patient’s case affirmed as to his informed consent claim but reversed and remanded as to his breach of contract and battery claims; the plaintiff alleged that the defendant doctors inserted cadaver bone into his spine despite his specific instructions not to; the Appellate Division disagreed with the trial court’s conclusions (1) that the use of cadaver bone contrary to the patient’s instructions was not a breach of a “fundamental element of the relationship” between the patient and the doctors and that, even if there was a breach of contract, a jury could not find damages flowing from that breach and (2) that the use of cadaver bone was not a “substantially different surgery” than the surgery that the patient authorized and therefore that no battery occurred; the trial court correctly concluded that the patient had not established his informed consent claim.

MUNICIPAL EMPLOYEES
PINTO v. LOCAL FINANCE BOARD
Appellate Division, A-958-04T1, September 22, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18555

Final decision of the Local Finance Board affirmed; the Board accepted the administrative law judge’s conclusion that the petitioner Municipal Clerk had an indirect interest in personnel matters that the Borough Council addressed in a closed session that she refused to leave, but it rejected the ALJ’s conclusion that there was no ethical violation under N.J.S.A. 40A:9-22.5(c) or (d), and it imposed a $100 civil penalty; the personnel matters involved two Borough employees who were the sons of the former Mayor, with whom the Clerk was romantically involved; contrary to the Clerk’s arguments on appeal, (1) she had an indirect personal interest under §40A:9-22.5(d), (2) that interest was sufficient to impair her objectivity or independence in violation of §40A:9-22.5(d), and (3) no hearing was required to find that she violated §40A:9-22.5(c).

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
J.S. v. SPRINGFIELD TOWNSHIP BOARD OF EDUCATION
OAL Docket No. EDS 11220-04N, Agency Docket No. 2005-9376, Final Agency Decision: September 9, 2005, released for publication September 19, 2005. By Frank, ALJ. (22 pages).

The administrative law judge granted the petitioner parents’ request for reimbursement of the expenses related to their unilateral out-of-district placement of their son for the 2004-2005 school year, for a declaration that the placement was appropriate for their son for the 2005-2006 school year, and for an order requiring the respondent Board of Education to reimburse them for the placement for as long as it was appropriate. Despite the aids and services provided by the Board, the son allegedly was unable to read independently when he was almost 10 years old. The ALJ concluded (1) that the Board had not shown by a preponderance of the evidence that it had provided the son with a free appropriate public education in the least restrictive environment, (2) that the parents had not violated the regulations concerning notice of a unilateral placement, and (3) that the parents were entitled to reimbursement because the unilateral placement was appropriate and justified and was providing the son with a free appropriate public education in the least restrictive environment.

SPECIAL EDUCATION
J.P. v. WYCKOFF BOARD OF EDUCATION
OAL Docket No. EDS 9100-04, Agency Docket No. 2005-9168, Final Agency Decision: September 9, 2005, released for publication September 19, 2005. By Celentano, ALJ. (59 pages).

The administrative law judge dismissed the petitioner parents’ request for a determination that their unilateral placement of their son at an out-of-district school was appropriate, for reimbursement for private tutoring for their son, and for placement at the out-of-district school with transportation. The son attended kindergarten through second grade at the respondent Board of Education’s school. While in second grade, the son was classified with a “specific learning disability,” but his parents rejected the Board’s proposed individualized education program for placement at the Board’s school and made their unilateral placement when he started third grade. Because the son never received special education or related services from the Board, the ALJ concluded that the parents were not entitled to reimbursement for their unilateral placement under 20 U.S.C. §1412(a)(10)(C)(ii) and N.J.A.C. 6A:14-2.10(b). The ALJ further determined that the Board had met its burden of establishing that the proposed IEP was reasonably designed to provide a meaningful educational benefit to the son and that it offered him a free appropriate public education.

SPECIAL EDUCATION
F.G. v. WEST WINDSOR-PLAINSBORO REGIONAL BOARD OF EDUCATION
OAL Docket No. EDS 4553-02, Agency Docket No. 2003-6651, Final Agency Decision: September 1, 2005, released for publication September 19, 2005. By Viscomi, ALJ. (3 pages).

The administrative law judge dismissed the petitioner parents’ request for due process as moot. The parents alleged that the respondent Board of Education had not provided their son with an appropriate in-district placement, had placed him on home instruction for “an excessive and unreasonable” length of time, had improperly sought to place him out of district, and had failed to timely develop an individualized education program for him. An administrative hearing resulted in an order to readmit the son in the Board’s district as a “stay-put,” among other things. The parties later settled all of the issues underlying the parents’ petition, except for the “nomenclature” of the agreement. The Board moved for summary decision dismissing the petition as moot, and the parents stated that they would move for summary decision permitting their son to remain in the Board’s high school through graduation because the interim stay-put order effectively became a permanent disposition of placement. The parents never filed their motion, and their son completed high school in the Board’s district. The ALJ concluded that the parents’ petition had achieved its desired result and that the issues it raised were moot.

SPECIAL EDUCATION
A.E. v. ENGLEWOOD CLIFFS BOARD OF EDUCATION
OAL Docket No. EDS 9756-05, Agency Docket No. 2006 10455, Final Agency Decision: August 30, 2005, released for publication September 19, 2005. By Strauss, ALJ. (6 pages).

The administrative law judge denied the petitioners’ application for emergent relief in the form of a stay-put order to allow the pupil to continue attending an out-of-district school and dismissed the matter. The pupil was a tuition student at the out-of-district school during the 2004-2005 school year based on an arrangement between the petitioners and the school, but the school declined to accept the pupil for the 2005-2006 school year. The ALJ concluded that the petitioners were not entitled to emergent relief under N.J.A.C. 1:6A-12.1(e) because they failed to establish that the legal right underlying their claim was settled or that they had a likelihood of prevailing on the merits of their underlying claim. The petitioners asserted that the school was required to provide services to the pupil for the 2005-2006 school year based on its contract with the respondent Board of Education of the municipality in which the petitioners lived. The ALJ found (1) that there was no document that could be construed as a contract for services between the Board and the school, (2) that the decisions relied on by the petitioners were “inapposite,” and (3) that no law or regulation requires an out-of-district school to continue to provide services to a student from another district where no contractual relationship obligates the school to provide a free appropriate public education to the student.


To Order Decisions

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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