NEW JERSEY LAWYER

DAILY BRIEFING      09/28/2005


News Briefs

TWO NEW JUDGES TO BE SWORN
With their nominations now confirmed by the Senate, Michael A. Toto, an East Brunswick solo, and Bernard E. DeLury Jr., a former general counsel for Caesar’s Entertainment in Atlantic City, are expected to be sworn in soon as the state’s newest Superior Court judges. Toto also is an arbitrator and has served as a municipal judge in Jamesburg, East Brunswick and Manalapan. DeLury, credited with helping guide Caesar’s growth into one of the world’s largest gaming concerns, left that company upon its June 13 merger with Harrah’s Entertainment. 9-27-05

SENATORS NOT KEEN ON MORRIS BAR’S JUDICIAL SCREENING
The Morris County Bar Association’s latest creation of a committee to screen and recruit candidates for judgeships isn’t getting overwhelming support from the county’s state senators. Republicans Robert J. Martin and Anthony R. Bucco say they would consider the committee’s recommendations but not necessarily accept them. “I want to have the flexibility of who I want to appoint,” Bucco said. The bar association has announced the creation of a committee to screen prospective judges and will recruit minorities and women for nominations to the bench. All 17 Morris judges are white and 15 are men. The association plans to announce its committee members and selection guidelines Oct. 6. Retired Appellate Judge Robert Muir Jr. will head the panel. The process is not entirely new. A compact reached in the county in 1994 called for a panel of bar members and citizens to develop a list of likely judicial candidates who then would be recommended by the county’s two senators. Then, too, Bucco said he would not be bound. Such efforts, in part, are designed to circumvent senatorial courtesy, an unwritten rule that allows senators to block nominations of individuals from their home counties without publicly saying why. 9-27-05

RACIAL-PROFILING LAWYER BUCKMAN TABBED FOR ACLU AWARD
William H. Buckman, the Moorestown attorney who played a leading role in building the racial profiling case against New Jersey State Police in the 1990s, will receive the New Jersey chapter of the American Civil Liberties Union’s highest honor, the Roger N. Baldwin Award, Oct. 11 at the Law Center in New Brunswick. The program, beginning at 6 p.m., also includes a review by Steven R. Shapiro, legal director for the ACLU’s national organization, of recent decisions by the U.S. Supreme Court. For further information, call Thomas S. Harris, the chapter’s development director, at (973) 642-2086. 9-27-0

MERCER PROSECUTOR INVESTIGATES KILLER’S TELEVISION INTERVIEW
The Mercer County Prosecutor’s Office is investigating whether Sheriff Kevin Larkin broke any laws when he allowed a convicted killer to leave county facilities for an interview on national television. Larkin has apologized for allowing Jonathan Nyce to change into a business suit and leave the county courthouse for the interview with NBC Dateline in the nearby Trenton office of his attorney, Robin Kay Lord. In a case that attracted national attention, Judge Bill Mathesius had just sentenced Nyce to eight years in prison for murdering his wife. The judge was outraged when he learned of the special treatment afforded the convict. 9-27-05

THREE FLATS AND YOU’RE IN
Getting a flat tire is always inconvenient, but getting three was way too much for Alexander Hernandez of Stafford Township. Police stopped him after observing him driving on three flats and subsequently found the car was reported stolen from a Surf City residence. He was charged with receiving stolen property and driving while intoxicated. During the processing, police found he was wanted for auto theft. Hernandez apparently got the flats in a crash shortly before police stopped him. 9-27-05



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, TUESDAY, SEPTEMBER 27, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, SEPTEMBER 27, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, SEPTEMBER 28, 2005.


APPROVED FOR PUBLICATION
PRODUCTS LIABILITY
BORYSZEWSKI v. BURKE
Appellate Division, A-2071-02T2, approved for publication September 27, 2005. (61 pages). Facts-on-Call Order No. 92676

In an action that arose from the death of a driver in an automobile accident and that alleged a products liability cause of action based on a design-defect/crashworthiness theory, in which there was a new trial on the issue of damages only, (1) the first jury’s liability verdict against the defendant manufacturer was affirmed, (2) the first trial court erred by ruling that the manufacturer was not entitled to have the jury apportion fault as to the defendants who caused the accident and by vacating three jury verdicts for emotional distress damages to the automobile’s passengers, (3) the first trial court correctly vacated a damages award for wrongful death, rejected remittitur, and ordered a new trial on that issue, and (4) the first trial court correctly rejected the manufacturer’s argument that the settlement between the plaintiffs and the defendants who caused the accident was void on public policy grounds.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
BERDUGO v. MODRZYNSKI
Appellate Division, A-1345-03T1, September 27, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18570

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 that the plaintiff’s muscle spasm did not meet the permanency requirement under the statute, but it did not consider whether an MRI test, which confirmed a lumbosacral disc bulge, was additional evidence of a permanent injury; in dismissing the complaint, the trial court held that the plaintiff did not raise a genuinely disputed issue of fact as to whether his injury had a serious impact on his life; reversal and remand were 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; on remand, the trial court should address whether there was objective clinical evidence of a permanent injury.

INSURANCE
CRIVELLI v. SELECTIVE INSURANCE CO. OF AMERICA
Appellate Division, A-5649-03T3, September 27, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18569

Summary judgment for the defendant insurer and denial of the plaintiff family members’ motion for reconsideration in a declaratory judgment action affirmed; the plaintiffs initially sued a roofing contractor for negligent workmanship that allegedly had resulted in water infiltration and mold contamination in their home, which led to property damage and bodily injury; the plaintiffs obtained a $400,000 judgment against the roofing contractor solely to effectuate an assignment of all of his rights under a commercial general liability policy issued by the defendant to the roofing contractor; the trial court correctly concluded (1) that there was no “occurrence” during the pertinent policy period because there was no evidence of bodily injuries or property damage during that period and (2) that the plaintiffs did not demonstrate any progressive injury or damage to trigger continuous coverage.

DISCOVERY
ANTONUCCI v. HAZLET BOARD OF EDUCATION
Appellate Division, A-1546-04T3, September 27, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18573

Summary judgment dismissing the plaintiff special education teacher’s action arising from the nonrenewal of her employment contract affirmed; the trial court properly refused to grant the plaintiff’s motion to compel discovery — which had been filed about six months after the close of discovery and about 18 months after the defendant Board of Education’s initial refusal to turn over certain documents — because the certification in support of the motion gave no reason for the delay in seeking to compel compliance with the discovery demands and because a motion to extend discovery never was sought.

CIVIL PROCEDURE
GORZYNSKI v. HUMIEC
Appellate Division, A-7081-03T3, September 27, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18571

Denial of the plaintiff’s motion to vacate an order granting summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold and denial of the plaintiff’s motion for reconsideration affirmed; where the plaintiff waited almost one year before seeking relief from the summary judgment order, (1) the motion court did not abuse its discretion by denying the plaintiff’s motion and (2) the plaintiff’s motion was not made within a reasonable amount of time under Rule 4:50-2; the reasons provided by the plaintiff were not an adequate explanation for the delay in seeking relief under Rule 4:50-1.

WORKERS’ COMPENSATION
FERGUSON v. PEDIATRIC SERVICES OF AMERICA
Appellate Division, A-3033-04T1, September 27, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18572

Division of Workers’ Compensation order that declared that the petitioner registered nurse was the respondent employer’s full-time employee and that awarded the nurse temporary disability benefits of $650 per week affirmed; the nurse worked for the employer one day per week from November 7, 2003 until March 1, 2004, when she was assigned to an additional patient and began working an additional four days per week in the patient’s home; the nurse injured her back while lifting the patient on March 1, but she continued to work until March 5; the record supported the judge of compensation’s conclusion that the nurse was a full-time employee when she was injured; the employer’s appellate arguments lacked merit.

FROM THE FEDERAL COURTS
CORPORATIONS
KANTER v. BARELLA
U.S. District Court (DNJ), Civil No. 04-5542 (JBS), September 21, 2005. By Simandle, U.S.D.J. (21 pages). Facts-on-Call Order No. 92676

The District Court dismissed with prejudice the complaint in a shareholder derivative action under Fed. R. Civ. P. 23.1 that arose from a dispute about the billing practices of a medical transcription services company. The plaintiff shareholder conceded that she had failed to make any demand on the company’s board of directors pursuant to Rule 23.1 before filing her action, but she claimed that the failure was excusable because a demand would have been futile. The District Court held that dismissal was required because the plaintiff did not plead with particularity facts that created a reasonable doubt that, as of the time of the filing of her complaint, the board that would have addressed her demand could have considered its merits impartially and without the influence of improper considerations.

IMMIGRATION LAW
QUN WANG v. ATTORNEY GENERAL OF THE UNITED STATES
Third Circuit, No. 04-2866, September 21, 2005. By Fuentes, C.J. Also on panel: Van Antwerpen, C.J. and Becker, C.J. Appealed from the Board of Immigration Appeals. (20 pages). Facts-on-Call Order No. 92675

The Third Circuit granted the petition of the petitioner citizen of the People’s Republic of China for review of a Board of Immigration Appeals order. The BIA order affirmed the immigration judge’s denial of relief from deportation to the petitioner, who had arrived in the United States in 2002 without valid entry documents. The petitioner alleged that his wife had been forcibly sterilized after she gave birth to their second child, but the immigration judge found him not credible. The Third Circuit concluded that the record could not sustain a finding that the petitioner was not credible based on (1) the immigration judge’s failure to follow the “basic requirement” of functioning as a “neutral and impartial” arbiter without becoming an advocate for either party and (2) the deficiencies in her decision.

ANTITRUST
HARRISON AIRE, INC. v. AEROSTAR INTERNATIONAL, INC.
Third Circuit, Nos. 04-2904 and 04-3052, September 16, 2005. By Scirica, Chief Judge. Also on panel: Roth, C.J. and Becker, C.J. Appealed from the U.S. District Court for the Eastern District of Pennsylvania. (23 pages). Facts-on-Call Order No. 92669

In an antitrust action alleging unlawful monopolization and tying in the aftermarket for replacement fabric for hot air balloons, the Third Circuit affirmed the grant of summary judgment for the defendant manufacturer and its subsidiary. The Third Circuit held that summary judgment was appropriate (1) as to monopolization because the plaintiff balloon purchaser had not met its burden of dissociating competition in the primary balloon market from conditions in the fabric aftermarket and (2) as to tying because the plaintiff had not produced evidence of the defendants’ “appreciable market power” in the tying product market.


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.