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Daily Decision Service Alert: Vol. 21, No. 221 ? November 13, 2012
New Jersey Law Journal
STATE COURT CASES
FAMILY LAW CHILD ABUSE
20-2-8171 New Jersey Division of Youth and Family Services v. D.E.J., App. Div. (per curiam) (24 pp.) This is an appeal from a Family Part fact-finding order which determined that D.E.J. had abused or neglected her newborn son by exposing him to a substantial risk of harm as a result of her drug abuse. Defendant argues that the court improperly considered numerous hearsay statements, hearsay contained within the admitted records, and improperly authenticated medical records. Finding that when the court admitted the documentary records over defendant's objections, it appeared to only focus on whether they qualified as business records, without considering whether they also contained embedded hearsay or expert opinions, did not sufficiently make clear the extent to which it relied on such embedded hearsay or the testimony of the State's sole witness, a case worker who did not have personal knowledge of the relevant circumstances testified to at trial, and admitted hospital records that were not accompanied by a delegation of authority signed by the head of the hospital and the corresponding secretary and which contained a considerable amount of hearsay information, the panel remands to afford the judge and parties the opportunity to reexamine the matter in light of M.G. and Konop and for a more detailed statements of reasons as to the evidentiary rulings in admitting the contested documents and the testimony and more specifically explaining what portions of the documents and testimony were relied on in reaching the disposition.
21-2-8172 Goodman, t/a All The Way Towing v. The Township Of Lakewood, App. Div. (per curiam) (10 pp.) Plaintiff Chayim Goodman, who operates an automobile towing business under the name All The Way Towing, appeals from the judgment of the Law Division dismissing his complaint against defendant Township of Lakewood. Plaintiff challenged the validity and implementation of amended ordinance regarding the use of tow trucks, and sought injunctive relief and damages. On appeal, Goodman argues that the trial judge erred in refusing to invalidate Lakewood's amended towing ordinance and in dismissing the damages count of his amended complaint on summary judgment. The appellate panel finds the judge appropriately determined that the amended ordinance was valid and that the glitches concerning implementation were not the result of arbitrary action on the part of the police; thus there was no legal basis for damages.
NEGLIGENCE MEDICAL MALPRACTICE
31-2-8173 Fields v. Hackensack University Medical Center, App. Div. (per curiam) (24 pp.) Plaintiff Doris Fields underwent a total knee replacement at Hackensack University Medical Center. Defendant Daniel Dragone, M.D. was the anesthesiologist for the surgery. Contending that Dragone's failure to follow the standard of care caused her permanent injury, Fields filed a medical malpractice action against Dragone and the Medical Center. The claims against the Medical Center were dismissed. Fields appeals the jury verdict in favor of Dragone. Fields argues that the trial judge erred in restricting the testimony of one of her expert witnesses, while declining to restrict the testimony of Dragone's expert. She also argues that the judge erred in refusing to give a missing witness charge after Dragone's counsel decided not to present testimony from several defense experts who were identified as witnesses. Finally, Fields argues that Dragone's counsel acted unfairly by failing to notify her counsel in advance that he would not be calling all of his experts. The appellate panel finds no reversible error with respect to the judge's evidentiary rulings or refusal to declare a mistrial. The panel also concludes the judge did not err in refusing to give an adverse inference charge. Finally, the panel concludes that defense counsel's tactical decision not to call all of his experts was not improper, unfair, or a violation of his duty of candor. There is no requirement that counsel make such a decision by a certain time during the trial or give opposing counsel advance notice, unless directed to do so by the court.
REAL ESTATE TORTS IMMUNITY
34-2-8174 Crystal Ice-Bridgeton, L.L.C. v. City of Bridgeton, App. Div. (Fasciale, J.A.D.) (14 pp.) In affirming summary judgment to various municipal defendants and a private contractor, we analyzed whether a property owner was entitled to notice before the contractor demolished the remainder of the owners fire-damaged building. We concluded that the notice requirements contained in N.J.A.C. 5:23-2.32(b)(2) and the summary hearing safeguards provided in N.J.S.A. 40:48-2.5(f)(2) were inapplicable because the municipal fire chief, acting pursuant to N.J.S.A. 40A:14-54.1, had sole authority to direct the ongoing fire operations, including the demolition of the building, in order to protect the lives and property endangered by the fire, and he had not yet declared the fire to be out. We also ruled that the municipal defendants, and the private contractor who acted at their direction, were immune from liability in these circumstances pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. [Approved for publication.]
35-5-8175 Greenwood ACRA Inc. v. Hamilton Twp., Tax Ct. (DeAlmeida, J.T.C.) (8 pp.) Plaintiff, the owner of real property on which it operates the Atlantic City Race Course and which annually enters into five licensing agreements with third parties to permit short-duration, non-continuous use of the parking lot for auctions, car shows and the circus, filed this action challenging the tax assessor's assessment of the property. It moves to strike defendant's affirmative defense asserting that plaintiff's claims are barred because of its failure to respond to the township's request for income and expense statement pursuant to N.J.S.A. 54:4-34. Finding that the property is not income producing within the meaning of that statute because the owner does not produce income from a tenancy at the property, the court concludes that plaintiff is not subject to the statute's appeal-limitation provision and therefore is not limited to an Ocean Pines reasonable hearing. [Filed November 9, 2012]
FEDERAL COURT CASES
16-7-8176 Milano v. Bd. of Educa. of Franklin Twp., Somerset County, U. S. Dist. Ct. (Cooper, U.S.D.J.) (13 pp.) Plaintiff, a teacher, brings this action against her employer alleging in count II that it violated her rights under the Petition Clause of the First Amendment to the United States Constitution by retaliating against her for filing a petition of appeal before the Commissioner of Education from the board's determination that she was not entitled to tenure, which resulted in a decision in her favor. Finding that when plaintiff filed her appeal she acted as a government employee who petitioned upon a matter of purely personal interest and that the appeal did not relate to a matter of public concern, the court grants defendant's motion under Rule 12(b)(6) to dismiss count II of the complaint for failure to state a claim upon which relief may be granted. [Filed November 13, 2012]