NEW JERSEY LAWYER

DAILY BRIEFING      09/27/2005


News Briefs

THIRD-PARTY RIGHT TO HEARING GOES BEFORE SUPREME COURT
Third parties’ rights to administrative hearings into applications before state agencies are the subject of separate cases slated for oral argument Tuesday before the state Supreme Court — IMO Freshwater Wetlands Statewide General Permits and In re NJPDES Permit No. NJ0025241. In Freshwater, a residents group in Irvington is appealing the rejection of its request for a hearing into a permit the Department of Environmental Protection (DEP) issued for a proposed development on protected woodlands. In the other matter, an environmental group seeks a hearing into DEP’s renewal of a permit for a wastewater treatment plant in Asbury Park. Both groups’ attorney, Susan Kraham of the Rutgers Environmental Law Clinic in Newark, claims DEP has not approved any of the 193 requests for administrative hearings it has received since 1993. 9-26-05

BLOOMFIELD SOLO TABBED FOR DANIEL J. O’HEARN AWARD
Bloomfield attorney Mary Jean Gallagher will receive the prestigious Daniel J. O’Hearn Award from the New Jersey Commission on Professionalism in the Law. Gallagher, Essex County Bar Association president in 1990-91, served on several Supreme Court committees and has held leadership positions in the New Jersey State Bar Association’s Women in the Profession Section and General Council. She now serves on the State Bar’s Judicial and Prosecutorial Appointments Committee. The commission will present the award at an Oct. 6 ceremony at the Law Center in New Brunswick. Professionalism awards also will be presented to recipients from all 21 counties. 9-26-05

CORPORATE COUNSEL TO BE SENTENCED FOR $15 MILLION FRAUD
Ben J. Zander of Mount Holly will be sentenced Jan. 5 for his role in financial fraud while serving as corporate counsel for the defunct Meridian Benefit of Wayne. Zander pleaded guilty last week in U.S. District Court in Trenton to concealing the fraud by the company, which left $15 million unpaid claims when it went out of business. Its president and sole shareholder Donald Ruth pleaded guilty to embezzlement. 9-26-05

JILTED DEVELOPER CHALLENGES EMINENT DOMAIN
Opening arguments are scheduled to begin Tuesday in Camden County in an eminent domain challenge filed by an unlikely plaintiff — a jilted developer. Vineland Construction Co. is contesting Pennsauken Township’s use of eminent domain for a project by Cherokee Northeast, claiming the township initially selected it for the development and it invested $300,000 in the work before the township opted to work with Cherokee and seize Vineland’s 140 acres for part of a larger project. Vineland claims the project is not in the public interest because Cherokee’s plan is similar to its own original plan. 9-26-05

AG DEFENDS 10-YEAR SENTENCE FOR $78.8 MILLION EMBEZZLEMENT
The Attorney General’s Office is defending its agreement to a 10-year sentence for a former insurance executive who pleaded guilty to embezzling $78.8 million in premiums. Deputy Attorney General Lewis J. Korngut said the agreement with Vito Gruppuso averted a trial that would have cost millions and the insurers he bilked still wouldn’t get any money back. “I’m just displeased with the outcome,” said Judge Salem Vincent Ahto, who ordered Gruppuso pay restitution. Gruppuso, who claimed he has no money left, also faces sentencing in federal court for his conviction of fleecing $3.4 million from a bank. 9-26-05.



Today's Decision Summaries

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.)

FROM THE NEW JERSEY SUPREME COURT, MONDAY, SEPTEMBER 26, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, SEPTEMBER 26, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, SEPTEMBER 27, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON MONDAY, SEPTEMBER 26, 2005.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
OPIZZI v. HARRIS
Appellate Division, A-7005-03T1, September 26, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18565

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court determined that the plaintiff had not presented evidence that satisfied either prong of James v. Torres; 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 must demonstrate only that he sustained a permanent injury; the plaintiff’s objective clinical evidence was sufficient to establish a permanent injury to his lumbar spine; although the parties and the trial court did not address the “crucial” issue of whether the evidence permitted the conclusion that the plaintiff’s injuries and their sequelae were causally related to his accident, a chiropractor’s report raised “at least an inference” that the plaintiff’s complaints originated from the accident.

VERBAL THRESHOLD
DLADLA v. VOLLMER
Appellate Division, A-7104-03T5, September 26, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18564

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court found (1) that the plaintiff had failed to establish that she suffered a “serious injury” in her 2001 accident with the defendant and that her injury had a “significant or severe impact on her life” and (2) that she had not submitted a comparative analysis of her pre- and post-accident injuries; the Appellate Division reviewed the plaintiff’s medical evidence and concluded that reversal and remand were warranted in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, which held that a plaintiff does not have to prove a serious life impact or a serious injury in addition to proving an injury under the statute.

MEDICAL MALPRACTICE
CASTELLANI v. KADAR
Appellate Division, A-5819-02T1, September 26, 2005, not approved for publication. (20 pages). Facts-on-Call Order No. 18566

Judgment of $1.65 million for the plaintiff patient in a medical malpractice action and denial of the defendant doctor’s motion for a new trial affirmed; the plaintiff alleged that the failure to diagnose diverticulitis caused her to suffer a ruptured diverticular abscess and to undergo a colostomy; contrary to the doctor’s arguments on appeal, the trial court did not err (1) by allowing the patient to reopen her proofs after the parties had rested and after the doctor’s attorney began his closing argument, (2) in instructing the jury about the standard of care, (3) by denying the doctor’s motion for a new trial, (4) by refusing to instruct the jury about the exercise of medical judgment, (5) by refusing to instruct the jury that the doctor could not be found liable for the acts or omissions of his nurse, and (6) by failing to instruct the jury that its duty to decide the case without sympathy included ignoring the plaintiff’s promise to her deceased husband to continue to live her life despite her condition.

TORT CLAIMS ACT
PHILLIPS v. CITY OF CAMDEN
Appellate Division, A-2469-04T3, September 26, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18562

Summary judgment for the defendant City based on the Tort Claims Act in a slip-and-fall action affirmed substantially for the reasons expressed by the trial court; the plaintiff allegedly was injured when he stepped off a sidewalk into a pothole in the road and fell; the trial court granted the City’s summary judgment motion because the plaintiff did not present evidence that the pothole was a dangerous condition of public property, because the plaintiff could not carry his burden of demonstrating that the City had notice of the condition of the roadway, and because the plaintiff offered no evidence to establish that the City’s failure to find and repair the pothole was palpably unreasonable; the plaintiff’s appellate arguments lacked merit.

EDUCATION
BRADFORD v. TOWNSHIP OF UNION PUBLIC SCHOOLS
Appellate Division, A-6285-03T1, September 26, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18563

Summary judgment for the defendant public school system and its officials and denial of the plaintiff teacher’s motion to amend his complaint in an employment dispute affirmed substantially for the reasons expressed by the trial court; the school system declined to renew the contract of the first-year, untenured teacher, who then sued for, among other things, defamation, conspiracy, and violations of the Conscientious Employee Protection Act; the defendants moved for summary judgment, and the teacher cross-moved to amend his complaint to add two more statutory claims; the teacher’s appellate arguments lacked merit.

HUSBAND AND WIFE
POLLACK v. POLLACK
Appellate Division, A-6632-03T5, September 26, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18567

Judgment in an action for divorce, custody, support, and equitable distribution affirmed in part, reversed in part, and remanded; the plaintiff husband challenged, among other things, (1) the award of sole custody of the parties’ child to the defendant wife, (2) the award of permanent, rather than temporary, alimony to the defendant, (3) the award of 100 percent of the marital home to the defendant, and (4) the denial of his motion for reconsideration; with one exception, the judgment was based on factual findings that were adequately supported by the record; the trial court erred by denying the plaintiff equitable distribution of the marital home because he owned the home before the parties became involved with each other and because there was no evidence that he intended his financial contributions to the purchase and maintenance of the home to be a gift to the defendant.

SENTENCING
STATE v. ROBERTS
Appellate Division, A-1875-03T4, September 26, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18568

Convictions of two counts of third-degree criminal mischief, second-degree eluding, two counts of third-degree aggravated assault on a police officer, fourth-degree joyriding, and a weapons offense affirmed but the matter remanded for resentencing; the trial court imposed a sentence on the eluding conviction of 10 years of imprisonment with an 85 percent parole disqualifier under the No Early Release Act; the record “clearly” supported the jury’s finding that the defendant’s eluding by car constituted a crime of violence within the meaning of NERA; however, resentencing was required in light of the New Jersey Supreme Court’s recent decision in State v. Natale because the 10-year term exceeded the presumptive term and because the record did not indicate the weight that was afforded to two aggravating factors that were found by the judge but that were not based on findings of fact by the jury.


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.)


Click this link to unsubscribe to the Daily Briefing email



Copyright © 2005 The New Jersey Lawyer Inc. All rights reserved.