NEW JERSEY LAWYER

DAILY BRIEFING      09/09/2005


News Briefs

ONLINE COURT RECORDS SPARKS DEBATE
Making court records available online, which is being considered by the Administrative Office of the Courts (AOC), has sparked controversy in other parts of the country. Among the concept’s supporters, Robert O’Neill, a University of Virginia law professor, said any records available to the public on paper should be online as well. “It’s either public or it isn’t,” he said. The American Civil Liberties Union seems to be leading the opposition. Charles Samuelson, executive director of the ACLU’s Minnesota’s chapter, said that making records available on court systems’ websites is “broadcasting” rather than public access. The federal judiciary’s Pacer system for years has had court records accessible online for a fee. The AOC, among other considerations, must determine if it can afford online postings. 9-8-05

BETTER TO MARKET THAN GO HUNGRY
Unlike many in other businesses, most lawyers are neophytes when it comes to marketing. Some just don’t want any part of that effort; others are willing but beg off, claiming they don’t have the time and still others need their hand held. With those facts of professional life in mind, attorneys increasingly turn to marketing “coaches” for a how-to game plan and, most important, how to stick to it. A full story is in the Sept. 12 New Jersey Lawyer. 9-8-05

RUTGERS-CAMDEN LAW SCHOOL TO HONOR CIRCUIT JUDGE
Judge Theodore A. McKee of the 3rd U.S. Circuit Court of Appeals will receive a public-interest award named for New Jersey’s first female attorney during a Sept. 27 ceremony at Rutgers Law School-Camden. The Mary Philbrook Public Interest Award, presented annually by the school’s Women’s Law Caucus, honors “leading advocates of social justice and equality.” McKee was appointed to the federal appeals court 1994 after a decade in the Court of Common Pleas in Pennsylvania. He also spent two years with Wolf, Block, Schorr & Solis-Cohen in Philadelphia and was an assistant U.S. attorney. He taught trial advocacy at Rutgers-Camden from 1980 to 1991. 9-8-05

FORMER BERGEN SHERIFF SUSPECTED OF PAROLE VIOLATION AGAIN
Morris County probation officials are investigating whether former Bergen County Sheriff Joseph Ciccone, a convicted felon, violated his plea agreement by accepting a teaching job at East Stroudsburg State University. The Pennsylvania school fired Ciccone apparently for not reporting his criminal background before he was hired to teach criminal justice. Ciccone already violated his probation by applying for three public-sector jobs in New Jersey. He was sentenced to five years’ probation and 500 hours of community service for his 2001 conviction on corruption counts that included shaking down sheriff’s department subordinates for campaign contributions. 9-8-05

EVIDENCE IS AMORPHOUS IN LANDLORD-TENANT DISPUTE
You might say this is rather different from the run-of-the-mill landlord-tenant legal skirmish. Owners of a restaurant who claim their newly renovated building is haunted are being sued by their landlord for backing out of a lease on the site in Orlando, Fla. An offer to hold an exorcism was refused, according to the $2.6 million lawsuit filed in Orange County Circuit Court. The attorney for restaurateurs Christopher and Yoko Chan say contractors gave documented reports of seeing ghosts and apparitions, and that Christopher Chung’s religious beliefs require him to avoid “spirits or demons.” 9-8-05

CLARIFICATION
An item in the Sept. 7 Daily Briefing inaccurately quoted plaintiffs attorney Herbert M. Korn of Morristown saying that if a medical malpractice lawsuit that he settled had gone to trial, it would have been subject to a $300,000 cap on the payment from insurer MIIX. Actually, he says the cap “Is not a foregone conclusion.” 9-9-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, SEPTEMBER 8, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, SEPTEMBER 8, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, SEPTEMBER 9, 2005.


APPROVED FOR PUBLICATION
ORDINANCES
DeFALCO INSTANT TOWING, INC. v. BOROUGH OF NEW PROVIDENCE
Appellate Division, A-4480-03T2, approved for publication September 8, 2005. (11 pages). Facts-on-Call Order No. 92657

A municipal ordinance that gives preference to towing vendors that maintain a place of business within the municipality is invalid because it is unlawfully discriminatory and exclusionary in violation of N.J.S.A. 40:48-2.49 and N.J.S.A. 40A:11-5(1)(u).

TAXATION
TOWN OF PHILLIPSBURG v. BLOCK 1508, LOT 12
Appellate Division, A-5002-02T5, approved for publication September 8, 2005. (25 pages). Facts-on-Call Order No. 92658

In an action arising from the competing interests in proceedings to foreclose a tax sale certificate, the Appellate Division (1) analyzed the relationship between the Tax Sale Law provisions that govern a motion to vacate a final judgment of foreclosure and the Rule 4:50 provisions that govern a motion to vacate a final judgment and (2) concluded that the policies underlying the Tax Sale Law supported the denial of the intervenor’s motion to vacate a judgment of foreclosure and its motion for reconsideration.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
ELLIOTT v. ESPOSITO
Appellate Division, A-6387-03T2, September 8, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18496

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the plaintiff claimed that she suffered “permanent” injuries in her accident with the defendant, but she had suffered similar injuries before the accident; the trial court concluded (1) that the plaintiff had not provided the comparative analysis of her injuries before the accident and her injuries from the accident that was required by Polk v. Daconceicao and (2) that she had not demonstrated that her injuries had a serious impact on her life; although the plaintiff did not have to show a serious impact on her life under the New Jersey Supreme Court’s recent decision in DiProspero v. Penn, summary judgment was appropriate because a review of the medical reports supported the conclusion that the plaintiff had not supplied the required comparative analysis.

ESTATES AND TRUSTS
IMPROVEMENT INVESTORS GROUP, INC. v. RICHARDSON
Appellate Division, A-383-04T2, September 8, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18497

Summary judgment that dismissed the plaintiff judgment holder’s action to set aside the conveyance of real property and to direct payment of its 1991 judgment against the decedent reversed and remanded; when the judgment was entered in 1991, the decedent was a contract purchaser of the property under a conditional sales contract; the decedent died intestate in 2001; in 2002, the defendant estate administrator, who was the decedent’s son, paid off the contract and was named the grantee in the deed, and he then conveyed the property to himself and his brother; the trial court concluded that there was nothing in the estate on which a judgment lien could attach because the decedent had an equitable interest in the property and not legal title when she died and because there were no other assets; however, the estate acquired legal title when the administrator paid off the contract and was named grantee; as a result, the equitable interest was transformed into a legal interest, and the administrator was obligated to pay the judgment lien.

INSURANCE
COX v. PADDACK
Appellate Division, A-4344-03T5, September 7, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18491

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded, but order dismissing the plaintiff’s claim for uncompensated medical expenses in the form of personal injury protection co-payments and deductibles affirmed; for many years, the plaintiff had been afflicted with sickle cell anemia; because the plaintiff did not allege an aggravation of a prior condition and because her prior condition did not result from trauma, an analysis under Polk v. Daconceicao was not required; however, the defendant may establish through expert testimony that the plaintiff’s current pain was the result of her sickle cell anemia and not the accident; the Appellate Division affirmed the dismissal of the plaintiff’s claim for uncompensated medical expenses in light of the recent decision in D’Aloia v. Georges, which held that AICRA does not allow recovery of uncompensated medical expenses in the form of PIP co-payments and deductibles.

VERBAL THRESHOLD
LOMBARD v. JONES
Appellate Division, A-1079-04T5, September 7, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18492

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the motion court concluded that the plaintiff had sustained injuries that amounted to exacerbations of pre-existing conditions and that she had not provided the comparative expert analysis required by Polk v. Daconceicao; there was no evidence of a qualified injury (1) where the MRI of her left knee revealed that there were “no definite tears” and that “grade II signal changes in the menisci were most likely on a degenerative basis” and (2) where the MRI of her lumbar spine revealed no fracture, edema, herniated nucleus pulpous, or central spine canal stenosis; even if one could conclude that the plaintiff had sustained a permanent injury, there was no analysis that compared her pre-existing condition to the current pain in her knee and back.

CONTRACTS
D’ONOFRIO v. GALLAGHER
Appellate Division, A-5137-03T2, September 7, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18495

Judgment of $267,468.72 for the plaintiff after a bench trial and denial of the defendant’s motion for summary judgment based on the entire controversy doctrine affirmed in an action arising from the plaintiff’s guarantee of a loan that was obtained by a restaurant; the trial court concluded that the defendant and two entities controlled by the defendant’s son had agreed to personally guarantee the plaintiff’s indebtedness if the plaintiff had to satisfy the restaurant’s obligations; contrary to the defendant’s arguments on appeal, (1) the trial court’s findings were supported by substantial credible evidence, (2) his arguments concerning the plaintiff’s impairment of collateral were irrelevant, and (3) the entire controversy doctrine did not bar the plaintiff’s claim.

HUSBAND AND WIFE
KUHN v. KUHN
Appellate Division, A-13-04T1, September 7, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18494

Post-divorce-judgment order that denied the defendant ex-husband’s application to vacate or reverse his alimony obligation affirmed substantially for the reasons expressed by the trial court; the trial court noted that the application was the ex-husband’s ninth application for the same relief and that it had “absolutely no merit”; the trial court conducted a “careful review” of the ex-husband’s circumstances, including his income, his expenses, and his assets; the ex-husband’s arguments on appeal lacked merit, and the reasons that the trial court set forth on the record to support its order were “essentially correct.”

MOTOR VEHICLES
STATE v. SCIOLI
Appellate Division, A-230-04T3, September 7, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18493

Conviction of violating N.J.S.A. 39:4-124 reversed; the defendant received a summons after he turned left at an intersection despite signs that prohibited left turns; although the summons cited N.J.S.A. 39:4-123, the defendant was found guilty of violating §39:4-124 for making an improper turn; the State conceded on appeal that the defendant was wrongly convicted of violating §39:4-124, and it “essentially agreed” with the defendant’s argument that §39:4-124 applies only where the method for turning set forth in §39:4-123 is modified, not where turns are prohibited; the State asserted that the defendant should have been charged under N.J.S.A. 39:4-81, which requires drivers to obey traffic control devices; reversal was required because the State never moved to amend the summons to charge a violation of §39:4-81 and because the State conceded that the conviction under §39:4-124 was wrong.

FROM THE ADMINISTRATIVE AGENCIES
COMMUNITY AFFAIRS
GONZALEZ v. BUREAU OF HOMEOWNER PROTECTION, NEW HOME WARRANTY PROGRAM
OAL Docket No. CAF 1509-05, Agency Docket No. BHP-765-04-5/W#1611551, Initial Decision: July 18, 2005, Final Agency Decision: August 10, 2005, released for publication August 30, 2005. By Klinger, ALJ. (9 pages).
The Acting Commissioner of the Department of Community Affairs adopted as his final decision the administrative law judge’s initial decision, which dismissed the petitioner homeowner’s appeal with prejudice in an action under the New Home Warranty Program. The homeowner appealed the portion of a home inspection report that denied his warranty claims for damage to tile flooring and for the separation of plywood from the tiles. Both of the claims arose from the failure of the roof drainage system, which the builder had corrected. Before the homeowner filed his claims, the builder also replaced some floor tiles that had cracked grout. The ALJ found that there was no credible evidence of defects in the tile flooring when the inspection was conducted and that the Verabond product that was used to install the tiles directly onto the plywood subfloor had performed “exactly as required.” The ALJ applied the N.J.A.C. 5:25-3.5(h)3i(1) performance standard for hard surface flooring and concluded that the homeowner was not entitled to awards under the New Home Warranty Program because his tile flooring had neither cracked nor become loose.


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