NEW JERSEY LAWYER

DAILY BRIEFING      09/29/2005


News Briefs

SUPREME COURT WEIGHS MASS TORT FOR CELEBREX, BEXTRA
The New Jersey Supreme Court is considering consolidating litigation alleging damages from the anti-inflammatory medications Bextra and Celebrex into a mass tort that would be centrally managed in Atlantic County. Both drugs, manufactured by Pfizer, have been linked to increased incidents of heart attacks and strokes. The Beasley Firm in Philadelphia submitted the application for consolidation. The judiciary is accepting comments on the application through Oct. 31. They can be sent to: Judge Philip S. Carchman, Acting Administrative Director, Administrative Office of the Courts, Hughes Justice Complex, P.O. Box 037, Trenton, N.J. 08625-0037. 9-28-05

WILENTZ AND PARKER TABBED FOR BAR ASSOCIATION HONORS
Two veteran attorneys with long track records of service to New Jersey’s legal community — Warren W. Wilentz, chairman and senior partner of Wilentz, Goldman & Spitzer in Woodbridge, and David A. Parker, a founder of and of counsel to Parker McKay in Marlton — will each receive the James J. McLaughlin Award Thursday from the New Jersey State Bar Association’s Civil Trial Bar Section. Wilentz, a 53-year member of the State Bar, has served as a trustee of the Association of Criminal Defense Lawyers of New Jersey, trustee and chairman of the Middlesex County Legal Services Corp., and president of the Middlesex County Bar Association. Parker, a 41-year member of the State Bar and past chairman of its Judicial and Prosecutorial Appointments Committee, was a president of the New Jersey Defense Association and an officer of the Trial Attorneys of New Jersey. For further information about the 6 p.m. event at the Hyatt Regency in New Brunswick, call (732) 249-5000. 9-28-05

FBI AGENT ACCUSED OF $24.75 THEFT
An FBI agent faces trial for allegedly stealing $24.75 worth of electrical wire from a home supplies store in West Long Branch. Monmouth County Assignment Judge Lawrence M. Lawson has rejected Thomas M. Jobes’ motion for dismissal on the grounds the charge is too minor to be prosecuted. Jobes claims it was an “oversight” when he left the store without paying for the 54-inch piece of wire. The county prosecutor’s office, though, alleges he cut the wire from a spool and tried to conceal it as he left the store in May. The case will be heard in West Long Branch municipal court. 9-28-05

CASINO PAYS $185K FOR EMPLOYEES OGLING FEMALE PATRONS
Caesars Atlantic City Hotel Casino will pay $185,000 to the state Division of Gaming Enforcement to settle charges its workers used surveillance cameras to peer down blouses of female patrons in October 2004. The casino, which was fined $80,000 last December for a similar incident in 2001, has fired the four culprits who used overhead surveillance cameras for their unauthorized viewing. 9-28-05

FIRMS RELY ON TECH AND NEW APPROACHES TO COMPETE
Competition is forcing law firms to make greater use of technology and adopt new approaches, such as sending lawyers back to school for master’s degrees in business, according to a nationwide survey by employment services vendor Robert Half Legal. Eighty-eight percent of firms are implementing new technologies or are training employees to maximize existing systems, the study found. Firms also are increasingly hiring chief marketing officers and sharing information among practice areas. 9-28-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, SEPTEMBER 28, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, SEPTEMBER 28, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, SEPTEMBER 29, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, SEPTEMBER 28, 2005.

NOT APPROVED FOR PUBLICATION
CIVIL PROCEDURE
J-RO PROPERTIES, LLC v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF HOBOKEN
Appellate Division, A-6811-03T5, September 28, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18577

Dismissal on timeliness grounds of the plaintiff condominium unit owners’ action in lieu of prerogative writs that challenged the defendant Zoning Board of Adjustment’s grant of approvals to the defendant applicant to allow construction of a car wash on property near their complex affirmed; notice of the resolution granting the approvals was published on January 8, 2003, and the 45-day period to appeal under Rule 4:69-6(b)(3) expired on February 24; demolition of the property began in May 2003, and in June 2003 the owners’ condominium association received a letter dated April 4, 2003 stating that the applicant would need access to the property; the action was filed on December 26, 2003; contrary to the owners’ argument on appeal, there was no reason for the trial court to enlarge the time to file their complaint pursuant to Rule 4:69-6(c).

LAND USE
CROWN CAR WASH OF MANALAPAN LLC v. TOWNSHIP OF MANALAPAN ZONING BOARD OF ADJUSTMENT
Appellate Division, A-530-04T5, September 28, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18580

Law Division decision that affirmed the defendant Zoning Board of Adjustment’s unanimous denial of the plaintiff’s application for a conditional use variance and for preliminary and final site plan approval affirmed substantially for the reasons expressed by the Law Division; the plaintiff sought to build a three-bay quick lube and automated tunnel car wash facility on a triangular piece of property in the C-3 zone, which permits car washes as conditional uses; due to the property’s configuration, the plaintiff needed “a number of bulk variances”; contrary to the plaintiff’s arguments on appeal, (1) the Board’s decision was not arbitrary, capricious, and unreasonable, (2) the Board did not apply incorrect standards and procedures, and (3) the Board did not improperly deny the application based on off-site traffic concerns.

VERBAL THRESHOLD
PITARESI v. CLARK
Appellate Division, A-953-04T5, September 28, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18579

Jury determination in an automobile negligence action that the plaintiff did not sustain an injury that seriously affected one or more activities that were a significant part of his life reversed and remanded; the trial court’s determination that the plaintiff’s hip replacement was a permanent injury and the jury’s determination that he had established a causal relationship between his injury and the accident were not challenged on appeal; thus, the plaintiff had established liability; in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, the plaintiff was entitled to a new trial on damages.

VERBAL THRESHOLD
BERRIOS v. STREMLO
Appellate Division, A-1548-04T2, September 28, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18578

Partial summary judgment for the defendants on all claims for noneconomic damages based on the N.J.S.A. 39:6A-8a verbal threshold remanded for reconsideration; the motion court relied on the Appellate Division’s decision in Serrano v. Serrano to conclude that the plaintiff’s injuries were not sufficient to meet the threshold of “seriousness and permanency” under the statute; however, the New Jersey Supreme Court in Serrano v. Serrano recently held that an accident victim must demonstrate only an injury defined under §39:6A-8a and does not have to demonstrate a “serious injury”; thus, the matter was remanded for reconsideration in light of the Supreme Court’s decisions in Serrano and DiProspero v. Penn after the parties have had the opportunity to develop the record and to make additional arguments based on those decisions; this was “particularly necessary” because the motion court apparently “blended” the two distinct prongs of the verbal threshold.

SEARCH AND SEIZURE
STATE v. HOLLOWAY
Appellate Division, A-410-04T4F, September 28, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18581

Order denying in part the defendant’s motion to suppress evidence seized as a result of a warrantless search incident to a police response to a domestic violence call affirmed; the emergency aid doctrine “clearly justified” the police entrance into the room where the victim and her assailant were found; although it had “no hesitancy” in affirming the trial court’s determination that there were exigent circumstances to justify the police entrance into two bedrooms, the Appellate Division preferred to base its affirmance as well on State v. Smith, which held that, where the police have reason to believe “in connection with the arrest of an individual that there may be danger from third parties on the premises,” they may “fan out” and conduct a protective sweep.

INSURANCE
MOORE v. ALLSTATE INSURANCE CO.
Appellate Division, A-228-04T1, September 27, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18574

Law Division order granting in part and denying in part the plaintiff’s application for attorney’s fees in an action for personal injury protection benefits affirmed; the Law Division properly concluded (1) that the issues in this case did not require the expenditure of 84.2 hours by the plaintiff’s attorney and (2) that the matter required no more than 20 hours of attorney time; the time spent by the plaintiff’s attorney to prepare “relatively routine court papers” was “excessive,” and an “unreasonable” amount of time was spent on legal research, review of court orders, and preparation of “routine correspondence”; although the plaintiff may have incurred some costs due to dismissals and adjournments, the costs were not “substantial or extraordinary”; contrary to the plaintiff’s assertion, the insurer did not act in bad faith and had reasonable grounds to contest her PIP claim.

PARENT AND CHILD
COKA-MORIN v. MORIN
Appellate Division, A-723-04T5, September 27, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18575

Post-divorce-judgment order denying the plaintiff ex-wife’s motion to be designated the parent of primary residence and to be awarded child support reversed and remanded; the Family Part erred by not separately considering the ex-wife’s request that she be designated the parent of primary residence after it concluded that she was not entitled to a change in the shared parenting schedule; contrary to the Family Part’s belief, its decision to reject the ex-wife’s application to fundamentally alter the shared parenting schedule did not resolve the question of the designation of parent of primary residence; at the very least, the Family Part should have considered whether, notwithstanding the shared parenting schedule, the ex-wife should have been designated as the parent of primary residence; the Family Part erred by concluding that the ex-wife was precluded from seeking child support merely because the parties were equally sharing parenting time.

PARENT AND CHILD
HILDEBRAND v. PETTERCHAK
Appellate Division, A-5037-03T3, September 27, 2005, not approved for publication. (19 pages). Facts-on-Call Order No. 18576

Post-divorce-judgment orders regarding the defendant father’s child support and day care obligations affirmed; contrary to the plaintiff mother’s arguments on appeal, the trial court did not err (1) by granting the father a credit for unnecessarily paying day care expenses that the mother did not incur, (2) by refusing to impose a trust under Lynn v. Lynn on the father’s inheritance to fund late child support payments, and (3) by failing to require that an increase to the father’s child support obligation be made retroactive where the trial court “expansively viewed” the father’s actual income and imputed other income to him beyond that sought by the mother.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
M.D. v. JERSEY CITY BOARD OF EDUCATION
OAL Docket No. EDS 9481-05, Agency Docket No. 2006 10323, Final Agency Decision: September 2, 2005, released for publication September 19, 2005. By LaFiandra, ALJ. (5 pages).

The administrative law judge dismissed with prejudice the petitioner mother’s due process petition challenging her son’s placement at a new school in the respondent Board of Education’s district. The son was a 12-year-old student who had “aged out” of his most recent school, and he and the rest of his class would be placed at the new school. The mother objected to the new placement on safety grounds because her son had been the victim of violence by other students while attending another of the Board’s schools and because the new school was located next to the high school, which had its entrance on the same street as the new school. Although the ALJ sympathized with the mother’s concerns about her son’s safety, the ALJ concluded (1) that the mother had not presented evidence of a “specific, clear threat” to her son if he attended the new school and (2) that the Board had “painted a clear picture” of its safety and security measures to protect students and of the propriety of the son’s new placement based on his educational needs.


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