X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
ACCIDENTAL DISABILITY (see EMPLOYMENT) ADMINISTRATIVE LAW (see also ENVIRONMENTAL LAW) ADMINISTRATIVE LAW — Administrative Procedure — Horse Racing Capone v. New Jersey Racing Commission , A-1340-01T2; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication March 18, 2003. Before Judges Skillman, Cuff and Winkelstein. On appeal from the New Jersey Racing Commission. DDS No. 01-2-3142 Where the Racing Commission did not issue a final decision with findings of fact and conclusions of law until seven months after receipt of the administrative law judge’s initial decision in one case, and for an entire year in another case, the commission’s delays constituted gross indifference to its responsibilities under the Administrative Procedures Act, and the suspensions of appellants’ licenses must be reversed; the ALJ’s initial decisions, which found that the commission had failed to prove the charges against appellants, were “deemed approved” when the commission failed to issue final agency decisions with findings of fact and conclusions of law within the time allowed under N.J.S.A. 52:14B-10(c). 171 N.J.L.J. 1203 ADMINISTRATIVE LAW — Insurance Law — PIP Coalition for Quality Health Care et al v. New Jersey Department of Banking and Insurance , A-5795-00T2; Appellate Division; opinion by King, P.J.A.D.; decided and approved for publication March 7, 2003. Before Judges King, Wecker and Lisa. On appeal from New Jersey Department of Banking and Insurance, Division of Insurance. DDS No. 22-2-3034 The adoption of N.J.A.C. 11:3-29(m) and 11:3-29.4(o) by the Commissioner of Banking and Insurance, which revised the fee schedule for reimbursement of medical treatment covered by personal-injury protection laws so that they are based on fees actually paid to physicians rather than amounts that have been billed to patients, and imposes a daily fee cap of $90, was not arbitrary or capricious, and does not violate the Commissioner’s statutory authority. 171 N.J.L.J. 1022 In the Matter of the Commissioner’s Failure to Adopt 861 CPT Codes, A-6787-00T2; Appellate Division; opinion by King, P.J.A.D.; decided and approved for publication March 7, 2003. Before Judges King, Wecker and Lisa. On appeal from the New Jersey Department of Banking and Insurance, Division of Insurance. DDS No. 23-2-3035 The adoption of N.J.A.C. 11:3-29 Appendix (Exhibit 1), which differed from the proposed rule by including only 92 Current Procedural Terminology codes in the fee schedule for personal-injury protection payments, violated the Administrative Procedures Act and fundamental principles of due process because it departed substantially and substantively from the proposed Exhibit 1, and re-proposal of that part of the rule is necessary; also, by addressing only a small percentage of the medical expenses reimbursable under PIP and not adopting a hospital fee schedule, the Department failed to follow the directives of N.J.S.A. 39:6A-4.6, and on remand the Department should give notice of its intention to decline to promulgate a hospital fee schedule to allow the regulated community the ability to comment or make counterproposals. 171 N.J.L.J. 1023 ADMINISTRATIVE PROCEDURE (see ADMINISTRATIVE LAW) AFFIDAVITS OF MERIT (see CIVIL PRACTICE, CONSTITUTIONAL LAW, TORTS) AFFORDABLE HOUSING (see LAND USE AND PLANNING) AGE DISCRIMINATION (see EMPLOYMENT) AGENTS/BROKERS (see INSURANCE LAW) ALTERNATIVE DISPUTE RESOLUTION — Arbitration — Auto Insurance — Health — PIP Liberty Mutual Insurance Company v. Open MRI of Morris & Essex, L.P. , MRS-L-1604-02; Law Division, Morris County; opinion by Villanueva, J.A.D. (retired and temporarily assigned on recall); decided September 27, 2002; approved for publication January 10, 2003. DDS No. 03-3-2567 An arbitration award — for the amount of an injured assignor’s PIP benefits — to an unlicensed health-care provider that had been warned by the Department of Health and Senior Services not to provide diagnostic testing before obtaining a license pursuant to N.J.S.A. 26:2H-12(a) and N.J.A.C. 13:35-6.16, see N.J.R. 1109(b), is vacated on the ground of “undue means,” since the arbitrator awarded it in manifest disregard of the law and in violation of public policy prohibiting unlicensed medical providers from practicing and receiving fees. 171 N.J.L.J. 305 AMBIGUITIES (see BUSINESS LAW) APPARENT AUTHORITY (see REAL PROPERTY) APPEALS (see also CRIMINAL PRACTICE, ENVIRONMENTAL LAW, FAMILY LAW, LAND USE and PLANNING) APPEALS — Disabilities — Education — Jurisdiction Hasbrouck Heights Board of Education v. W.J. et al , A-2315-00T5; Appellate Division; opinion by Hoens, J.A.D.; decided and approved for publication March 4, 2003. Before Judges Wallace, Ciancia and Hoens. On appeal from the Law Division, Bergen County, L-01090-99. [Sat below: Judge Stark.] DDS No. 16-2-2980 The right conferred by the Individuals with Disabilities Education Act to appeal a final administrative agency decision regarding the placement of a child with a learning disability is implemented by the filing of a civil action in the trial court in the first instance; while commonly referred to as appeals, such proceedings do not proceed only upon the record compiled before the educational agency, but also afford the opportunity for the creation of a broader record for analysis by the trier of fact and are inappropriate for consideration in the first instance by the Appellate Division; the order of the Law Division judge transferring the school district’s appeal of the administrative law judge’s decision, which was favorable to the child’s parents, to the Appellate Division is reversed and the matter is remanded to the Law Division for further proceedings. 171 N.J.L.J. 923 ARBITRATION (see ALTERNATIVE DISPUTE RESOLUTION, EMPLOYMENT) ARMED ROBBERY (see CRIMINAL PRACTICE) ASSAULT (see CRIMINAL PRACTICE) ATTORNEY ADVERTISING (see TORTS) ATTORNEYS (see CIVIL PRACTICE, REAL PROPERTY, TORTS) ATTORNEYS’ FEES — Landlord/Tenant Kellam Associates, Inc. v. Angel Projects, LLC et al , A-2603-01T2; Appellate Division; opinion by Lisa, J.A.D.; decided and approved for publication January 22, 2003. Before Judges King, Wecker and Lisa. On appeal from the Law Division, Sussex County, L-369-00. [Sat below: Judge Russell.] DDS No. 27-2-2604 Plaintiff-lessor is a prevailing party in this litigation since its complaint sought and the judgment awarded past-due rent, and also resulted in future rents somewhat smaller than plaintiff sought but substantially greater than defendant-lessee was willing to pay; thus, under a provision of the lease authorizing attorneys’ fees and costs for enforcing it, plaintiff has satisfied both prongs required for such an award (but for its lawsuit, defendant would not have paid the greater amounts and the relief sought and obtained was based on the lease), and the matter is remanded to the trial court for a determination, in accordance with this opinion, of reasonable attorneys’ fees and costs. 171 N.J.L.J. 328 ATTORNEYS’ FEES — Legal Malpractice DiStefano v. Greenstone et al , A-1098-01T2; Appellate Division; opinion by King, P.J.A.D.; decided and approved for publication February 7, 2003. Before Judges King, Wefing and Fuentes. On appeal from the Law Division, Union County, UNN-L-4753-99. [Sat below: Judge Pisansky.] DDS No. 04-2-2769 Where plaintiff’s original counsel did not timely pursue plaintiff’s personal-injury claim, which was barred by the statute of limitations, and her legal malpractice claim was partially settled for $90,000, plaintiff is entitled to recover the entire $90,000 without reduction for the original one-third contingency fee, and is also entitled to recover as consequential damages in the malpractice action her agreed-on one-third contingency fee with her present attorney, and the judgment of the trial court is affirmed. 171 N.J.L.J. 730 AUTO DEALERS (see INSURANCE LAW) AUTO INSURANCE (see ALTERNATIVE DISPUTE RESOLUTION, INSURANCE LAW) AUTO NEGLIGENCE (see TORTS) AUTO THEFT (see CRIMINAL PRACTICE, INSURANCE LAW) AUTOMOBILE LEASES (see CONSUMER PROTECTION, CREDITORS’ and DEBTORS’ RIGHTS) AVOIDABLE CONSEQUENCES (see TORTS) BACK PAY (see GOVERNMENT) BANKS (see COMMERCIAL LAW) BEST PRACTICES (see CIVIL PRACTICE) BI-STATE AUTHORITIES (see WORKERS’ COMPENSATION) BOARDS OF EDUCATION (see GOVERNMENT) BUILDERS’ REMEDY (see LAND USE AND PLANNING) BURDENS (see CONSUMER PROTECTION, EMPLOYMENT, GOVERNMENT, TORTS) BUSES (see TORTS) BUSINESS LAW — Ambiguities — Contracts — Stock-Option Plans Schor v. FMS Financial Corporation, etc. , A-6713-00T5; Appellate Division; opinion by Alley, J.A.D.; decided and approved for publication December 30, 2002. Before Judges Stern, Coburn and Alley. On appeal from the Law Division, Camden County, L-8555-98 and L-1293-99 (consolidated). [Sat below: Judge Drozdowski.] DDS No. 12-2-2411 Where the stock-option plan provided that options must be exercised while the holder is a director of the corporation or within 90 days after being terminated as a director, and the plan defined “corporation” under the name of the parent corporation, applying the 90-day condition only to directors of the parent corporation would create an inequality because a director of the parent corporation would be given a shorter time to exercise his options than a director of a subsidiary and, therefore, the parent corporation should be allowed to offer extrinsic evidence to demonstrate the meaning of the plan; the very unreasonableness of a contention that the parent corporation, which prepared the documents, would want to limit its own directors to a 90-day exercise period, while allowing its subsidiaries’ directors to have 10 years, bespeaks that the definition of “corporation” in the plan as being inherently ambiguous. 171 N.J.L.J. 54 CANCELLATION (see WORKERS’ COMPENSATION) CDS (see CRIMINAL PRACTICE) CERTIFICATIONS OF PERMANENCY (see INSURANCE LAW) CHARITABLE IMMUNITY (see TORTS) CHILD ABUSE AND NEGLECT (see FAMILY LAW) CHILD PLACEMENT (see FAMILY LAW) CHILD SUPPORT (see FAMILY LAW) CHILD VICTIMS (see CRIMINAL PRACTICE) CHURCHES (see TORTS) CIVIL PRACTICE — Affidavits of Merit — Medical Malpractice Risko v. Ciocca et al , A-273-01T1; Appellate Division; opinion by Stern, P.J.A.D.; decided and approved for publication January 7, 2003. Before Judges Stern, Coburn and Alley. On appeal from the Law Division, Middlesex County, L-8448-00. [Sat below: Judge Hague.] DDS No. 29-2-2487 As the motion judge held, it was obvious in this medical-malpractice case, where plaintiff’s decedent died almost a year after a right carotid endarterectomy that an expert was necessary to discuss the causes and the complexities involved in the operative procedure, which has nothing to do with common knowledge, and the dismissal for failure to provide an affidavit of merit is affirmed; furthermore, given the Supreme Court’s recent dictum in Hubbard, since the common-knowledge doctrine was not applicable, an affidavit of merit would have been required for plaintiff’s res ipsa loquitur claim. 171 N.J.L.J. 130 CIVIL PRACTICE — Attorneys — Best Practices — Ethics — Expert Testimony — Sanctions Kosmowski et al v. Atlantic City Medical Center et al , A-144 September Term 2001; Supreme Court; opinion by Coleman, J.; concurrence by LaVecchia, J.; decided March 19, 2003. On certification to the Appellate Division. [Sat below: Judges Braithwaite and Weissbard in the Appellate Division; Judge Lehrer in the Law Division.] DDS No. 29-1-3158 When an attorney is unable to try a case due to the first unavailability of an expert, dismissal of the complaint with prejudice is drastic punishment and should not be invoked except where there is a deliberate and contumacious disregard of the court’s authority; this was not the ordinary case, in that it was plaintiffs’ counsel’s inaccurate representation to the trial court about the whereabouts of his unavailable expert witness that prompted the dismissal with prejudice after the statute of limitations had expired, which denied blameless plaintiffs of their day in court due to their attorney’s conduct. Plaintiffs’ counsel’s February 5, 2001, request, because of the unavailability of his expert, for an adjournment of the trial of this medical-malpractice case, which had been filed on September 1, 1995, was not proscribed by Best Practices R. 4:36-3(c), although other Best Practices rules govern the progress of cases filed prior to September 5, 2000, and discretionary rulings should be reasonably consistent with their provisions and purposes; under the unique facts of this case, on remand the trial court should reassess its discretionary dismissal with prejudice and consider whether restoration of the complaint would cause any prejudice to defendants caused by the delay since February 5, 2001; if the complaint is restored, the court should consider the range of sanctions to be imposed on plaintiffs’ counsel for his lack of candor. 171 N.J.L.J. 1146 CIVIL PRACTICE — Collection Fees — Default Judgments First Morris Bank and Trust v. Roland Offset Service, Inc. et al , A-0776-01T2; Appellate Division; opinion by Coburn, J.A.D.; decided and approved for publication January 22, 2003. Before Judges Coburn, Collester and Alley. On appeal from the Law Division, Morris County, L-2414-99. [Sat below: Judge Langlois.] DDS No. 15-2-2599 The inclusion of a 20% collection fee in the default judgment entered in favor of plaintiff after defendants had defaulted on a commercial bank loan did not constitute a showing of truly exceptional circumstances sufficient to support the trial court’s vacating the judgment based solely on Rule 4:50-1(f); 20% has been recognized in New Jersey as presumptively reasonable, subject to the borrower’s right to prove the contrary, and here, where the certification presented by defendants asserted only that they were unaware of the collection fees’ inclusion in the award until they received the writ of execution, and plaintiff’s certifications indicated that a substantial amount of work had been done in pursuit of its recovery, there is no suggestion that a grave injustice occurred, and the original default judgment is reinstated. 171 N.J.L.J. 327 CIVIL PRACTICE — Construction Liens — Counties — Mechanics’ Liens West Virginia Steel Corp. v. Sparta Steel Corp. et al , A-0702-01T3; Appellate Division; opinion by Parker, J.A.D.; decided and approved for publication January 7, 2003. Before Judges Petrella, Braithwaite and Parker. On appeal from the Law Division, Bergen County, L-8619-00. [Sat below: Judge Russello.] DDS No. 43-2-2478 The Construction Lien Law is clear, unambiguous, and mandatory in providing that a party “shall forfeit” all rights to enforce a construction lien if it fails to bring an action in the Superior Court in the county in which the real property is situated and in requiring a written agreement between the parties to enforce the lien; the dismissal with prejudice of plaintiff’s action to enforce construction liens against two of the defendants is affirmed because there was no written agreement and the action was filed in Bergen County, where neither defendant was located, and the dismissal of the action against Passaic County is affirmed because an action against a county must be filed in the county in which the cause of action arose and, under the Municipal Mechanic’s Lien Law, a lien can be placed only against the property owner and the County does not own the property on which Passaic County College was built. 171 N.J.L.J. 196 CIVIL PRACTICE — Defamation — Public Figures — Summary Judgment Hopkins v. City of Gloucester et al , A-0011-01T5; Appellate Division; opinion by Lisa, J.A.D.; decided and approved for publication March 12, 2003. Before Judges King, Wecker and Lisa. On appeal from the Law Division, Camden County, L-6350-99. [Sat below: Judge Cook.] DDS No. 36-2-3090 Where, under the Times v. Sullivan standard of actual malice, the alleged defamer’s state of mind is critical, and there is a genuine critical issue of material fact as to the state of mind, summary judgment should be denied; here, where plaintiff sued the city and its tax collector for defamation, the judge below incorrectly granted summary judgment to defendants, since there is sufficient competent evidence in the record to enable a fact finder to conclude, by clear and convincing evidence, that the tax collector made false statements about plaintiff with actual malice, in that (viewing the evidence in the light most favorable to plaintiff) he was fully aware that the certified check plaintiff had presented to pay a third party’s tax lien could not have bounced and that the bank’s notice when returning it clearly stated that the reason for non-payment was an irregular endorsement by his own office; thus, he possessed no information that the check had bounced or that plaintiff had been passing bad checks or preying on the elderly, or was dishonest or untrustworthy, or had engaged in illegal conduct that would subject him to being arrested; even without finding knowledge of falsity, the jury could find a reckless disregard for the truth or falsity of those statements. 171 N.J.L.J. 1197 CIVIL PRACTICE — Gun Manufacturers — Municipalities James v. Arms Technology, Inc., et al, etc. , A-3098-01T3, A-3103-01T3, A-3487-01T3; Appellate Division; opinion by Havey, P.J.A.D.; decided and approved for publication March 11, 2003. Before Judges Havey, Rodriguez and Payne. On appeal from the Law Division, Essex County, ESX-L-6059-99. [Sat below: Judge Minuskin.] DDS No. 30-2-3067 In this action by the Mayor and City of Newark against gun manufacturers, distributors and trade associations seeking to recover the costs of government services incurred as a result of gun violence, the motion judge correctly denied defendants’ motion to dismiss for failure to state a claim as to plaintiffs’ negligence, public nuisance, and punitive damage claims; at this posture of the case, the concern is not with the City’s ability to prove the facts alleged, but whether, indulgently read, “the fundament of a cause of action may be gleaned” from the pleadings, giving the City the benefit of all reasonable factual inferences that the allegations support, and applying that standard, the City should be permitted to go forward with its claims; defendants’ arguments that, based on the pleadings, the City’s alleged damages are too remote from their conduct to satisfy the proximate-cause requirement as a matter of law and that the City’s pleadings do not set forth a cognizable claim of public nuisance are rejected; the “Municipal Cost Recovery Rule,” which holds that a public body cannot recover the cost of governmental emergency services necessitated by a tortfeasor’s conduct, absent legislative authority, is not applicable to this case, nor is the antitrust analysis applied by the federal and Connecticut courts in similar cases. 171 N.J.L.J. 1142 CIVIL PRACTICE — Jurisdiction — Special Civil Part Splash of Tile, Inc. v. Moss etc. , A-5595-00T1; A-5775-00T1; Appellate Division; opinion by Carchman, J.A.D.; decided and approved for publication January 27, 2003. Before Judges Conley, Carchman and Parrillo. On appeal from the Law Division, Special Civil Part, Hunterdon County, DC-342-00 and HUNT-L-168-01. [Sat below: Judge Bernhard.] DDS No. 07-2-2641 R. 6:4-1(b) and (c) must be read in parallel and in parity: either a plaintiff or a defendant whose counterclaim exceeds the jurisdictional monetary limits of the Special Civil Part may move within a reasonable time before trial for transfer to the Law Division, and the motion judge incorrectly determined that defendant’s failure to move for a transfer at the time he filed his counterclaim barred his subsequently filed motion; although defendant’s damages had not increased in the meantime, the quantification of them by an expert, obtained after the filing of the counterclaim, provided the good-faith basis for a transfer, and such a motion should generally be granted when warranted and where its timing does not unduly prejudice the rights of the other parties; this matter is remanded to the Law Division for a new trial on plaintiff’s complaint and defendant’s counterclaim for breach of contract. 171 N.J.L.J. 477 CIVIL RIGHTS (see also CONSTITUTIONAL LAW, GOVERNMENT) CIVIL RIGHTS — Discrimination — Hostile Work Environment — Sexual Harassment — Tort Claims Act Velez v. City of Jersey City et al , A-623-01T3; Appellate Division; opinion by Lintner, J.A.D.; decided and approved for publication March 11, 2003. Before Judges Petrella, Lintner and Parker. On appeal from the Law Division, Hudson County, L-8249-99. [Sat below: Judge Curran.] DDS No. 25-2-3066 Here, where plaintiff asserts various common-law tort claims and a claim for sexual harassment under the New Jersey Law Against Discrimination arising out of an alleged sexual assault by defendant, a Jersey City councilman, the motion judge erred in dismissing her LAD claims against defendant-city since she alleged sufficient facts to establish a triable issue concerning negligence on its part for failure to adequately enforce its sexual-harassment policy, thus creating the hostile work environment that she alleges was a proximate cause of her injuries. Although plaintiff’s common-law claims against the city were properly dismissed, because her oral notification to her direct supervisor and to his supervisor did not constitute substantial compliance with the notice requirements of the Tort Claims Act, the motion judge erred in dismissing her common-law claim of assault and battery against defendant-councilman since the amendment to the Act extending application of the notice provisions to public employees was not intended to modify the plain meaning of N.J.S.A. 59:3-14, which is to prevent public employees guilty of “outrageous conduct” (such as that alleged here) from availing themselves of the limitations as to liability and damages in the Act — to permit defendant to avail himself of the notice provisions to avoid liability for outrageous conduct would run counter to legislative intent and the overall purpose of the Act. 171 N.J.L.J. 1127 CIVIL RIGHTS — Immunity — Per Quod Damages — Prejudgment Interest — Probable Cause — Prosecutor’s Office — Search and Seizure Maudsley v. State of New Jersey et al , A-5616-00T1; Appellate Division; opinion by Wells, J.A.D.; decided and approved for publication February 27, 2003. Before Judges Havey, Wells and Payne. On appeal from the Law Division, Cape May County, L-884-93. [Sat below: Judge Visalli.] DDS No. 46-2-2936 Where plaintiff alleged that his civil rights were violated when the county narcotics task force searched his boat for drugs, pursuant to a warrant that was issued based on information supplied by a confidential informant, and no contraband was found, the trial court’s determination that no probable cause existed to issue the warrant is affirmed since there was no factual support for the informant’s reliability or the veracity of his knowledge, and the police failed to independently corroborate the informant’s story; the judge’s legal conclusion that no qualified immunity exists is also affirmed since the police could not reasonably have believed that probable cause existed based on their incomplete and faulty investigation of the informant. A spouse may not bring a claim for loss of consortium based on her husband’s claim of a violation of his civil rights under 42 U.S.C. § 1983 since a loss of consortium is a derivative claim and § 1983 only permits suit for the abridgement of one’s own constitutional rights, and the per quod award is reversed; additionally, the award of prejudgment interest in § 1983 actions is to be determined in accordance with federal law, rather than state law, and the denial of prejudgment interest is reversed and the matter is remanded for a redetermination of interest in accordance with federal law. 171 N.J.L.J. 895 CIVIL SERVICE (see also GOVERNMENT) CIVIL SERVICE — Municipalities — Police Officers Watson v. City of East Orange , A-73 September Term 2001; Supreme Court; per curiam opinion; dissent by Long, J.; decided February 24, 2003. On certification to the Appellate Division. [Sat below: Judges Eichen and Lintner in the Appellate Division.] DDS No. 33-1-2908 Watson v. City of East Orange, A-3652-99T3; Appellate Division; opinion by Eichen, J.A.D.; decided October 30, 2001; approved for publication February 24, 2003. Before Judges Eichen and Lintner. On appeal from the Merit System Board, CSV-11533-98. DDS No. 33-2-8528 The decision of the Appellate Division, affirming the decision of the Merit System Board that petitioner should be discharged for failing to comply with the terms of the “last chance agreement” that he had entered into with respondent-city as part of his suspension, after he fired his service revolver on a college campus while under the influence of alcohol, is affirmed; given the dangerousness of that conduct, respondent acted in the public interest by requiring him to comply with both the letter and spirit of the LCA, which grants respondent the discretion to deem him in breach of the agreement, justifying his dismissal; even if the LCA did not give respondent that degree of discretion, the disposition would be the same since it is clear from the LCA’s text and its surrounding circumstances that petitioner was expected to complete a recovery program in a timely fashion, which he failed to do before his suspension period expired. 171 N.J.L.J. 812 COLLECTION FEES (see CIVIL PRACTICE) COMMERCIAL LAW — Banks — Conversion — Mortgages Sovereign v. Bank United National Bank , A-2790-01T3; Appellate Division; opinion by Wefing, J.A.D.; decided and approved for publication March 18, 2003. Before Judges King, Wefing and Lisa. On appeal from the Law Division, Somerset County, SOM-L-2049-00. [Sat below: Judge Richardson.] DDS No. 06-2-3144 Where the mortgagors received an insurance check from the Federal Emergency Management Agency for flood damage to their property, made payable to the mortgagors, plaintiff-mortgagee, and the Department of Housing and Urban Development, and defendant accepted the check with only the endorsements of the mortgagors, plaintiff’s failure to initiate a separate deficiency action against the mortgagors after it obtained a final judgment of foreclosure is immaterial to the question of defendant’s liability for conversion under 12A:3-420(a); also, while plaintiff is not entitled to recover more than its loss, defendant presented no competent proof that plaintiff could have obtained a greater price for this damaged property or that plaintiff’s loss was any less than the converted amount of the check. 171 N.J.L.J. 1223 CONFLICTS OF INTEREST (see CRIMINAL PRACTICE, LEGAL PROFESSION) CONSTITUTIONAL LAW (see also CRIMINAL PRACTICE) CONSTITUTIONAL LAW — Affidavits of Merit — Civil Rights — Prisoners Seeward v. Integrity, Inc. et al , A-2376-01T1; Appellate Division; opinion by Winkelstein, J.A.D.; decided and approved for publication February 18, 2003. Before Judges Skillman, Cuff and Winkelstein. On appeal from the Law Division, Middlesex County, L-9785-99. [Sat below: Judge Hurley.] DDS No. 29-2-2851 State legislation may not impede an individual’s right to allege a federal constitutional violation, and an affidavit of merit is not required to establish a cause of action to vindicate a federal constitutional right, even if that right arises out of medical treatment given to an inmate by licensed medical providers; here, the motion judge erred in dismissing, based on the absence of an affidavit of merit, plaintiff-inmate’s 42 U.S.C. § 1983 complaint against the entity that provides medical care to inmates on behalf of the State, alleging that he was subjected to cruel and unusual punishment by their deliberate indifference to his complaints of pain, in violation of the Eighth Amendment; however, the motion judge correctly determined that plaintiff failed to establish a prima facie showing of deliberate indifference to his medical needs by defendant-halfway house and its staff, and their motion to dismiss his constitutional claims is affirmed. 171 N.J.L.J. 799 CONSTITUTIONAL LAW — “Good Time Credits” — Self-Incrimination — Sex Offenders Bender v. New Jersey Department of Corrections , A-4858-98T3; Appellate Division; opinion by King, P.J.A.D.; decided and approved for publication January 9, 2003. Before Judges King, Lisa and Fuentes. On appeal from the Department of Corrections. DDS No. 13-2-2503 An inmate such as appellant, incarcerated at the Adult Diagnostic and Treatment Center, cannot be required, as part of the Sex Offenders Treatment Program, to disclose information about crimes for which he may be prosecuted upon penalty of loss of institutional credits for good time and work without some type of use immunity, since the loss of otherwise available credits against his sentence, leading to a longer prison term, is a form of compulsory self-incrimination that does not survive federal constitutional scrutiny; here, where appellant never explicitly claimed the privilege during the administrative proceedings and respondent claims that he was not penalized for refusing to disclose and discuss past crimes but for refusing to attend the treatment program, the matter is remanded for a new administrative hearing. 171 N.J.L.J. 180 CONSTRUCTION LIENS (see CIVIL PRACTICE) CONSUMER FRAUD (see CONSUMER PROTECTION) CONSUMER PROTECTION — Automobile Leases — Burdens — Consumer Fraud — Damages Cuesta v. Classic Wheels, Inc. , A-2269-01T5; Appellate Division; opinion by Wallace, J.A.D.; decided and approved for publication March 21, 2003. Before Judges Pressler, Wallace and Axelrad. On appeal from the Law Division, Essex County, L-4806-99. [Sat below: Judge Schott.] DDS No. 09-2-3175 Where plaintiff leased a car from defendant and a few days later he discovered that the actual mileage on the car was more than 100,000 miles and not the 59,000 miles set forth on the odometer, which appeared to have been tampered with, and defendant refused to take back the car and give plaintiff a refund of his down payment, plaintiff’s revocation of acceptance under the Uniform Commercial Code entitled him to damages under the Consumer Fraud Act based on his lease payments, and the judgment entered in favor of defendant based on plaintiff’s failure to prove damages is reversed; on remand, if plaintiff’s continued use of the car is found to be reasonable, the trial court must determine damages; defendant may be entitled to an offset for all or at least a part of the lease payments made by plaintiff for the two years he used the car after he sought revocation, but defendant must bear the burden of proof on that issue. 171 N.J.L.J. 1215 CONSUMER PROTECTION — Fraud Judge v. Blackfin Yacht Corp. et al , A-1662-01T3, A-2815-01T3F; Appellate Division; opinion by Parker, J.A.D.; decided and approved for publication February 13, 2003. Before Judges Braithwaite, Lintner and Parker. On appeal from the Law Division, Ocean County, L-658-98. [Sat below: Judge Cooper.] DDS No. 09-2-2823 Here, where plaintiff purchased a boat made to his specifications, the 10% nonrefundable deposit required by defendant-seller did not constitute consumer fraud but was a legitimate method of financial assurance for defendant; further, defendant had no duty to disclose the bankruptcy of the supplier of the boat to plaintiff because there was no foreseeable risk that it would not deliver the boat, and since there was no basis for imposing such a duty on defendant there can be no finding that defendant knowingly concealed a material fact with the intent that plaintiff rely on the concealment, so the evidence cannot sustain a judgment in favor of plaintiff; the trial court erred in denying defendant’s motion for a judgment notwithstanding the verdict. 171 N.J.L.J. 732 CONTEMPT (see CRIMINAL PRACTICE) CONTRACTS (see also BUSINESS LAW, REAL PROPERTY) CONTRACTS — Municipalities — Prejudgment Interest Van Note Harvey Associates, P.C. v. The Township of East Hanover , A-124 September Term 2001; Supreme Court; opinion by Coleman, J.; decided March 12, 2003. On certification to the Appellate Division. [Sat below: Judges Baime, Fall and Axelrad in the Appellate Division; Judge Convay in the Law Division.] DDS No. 11-1-3081 Here, where plaintiff sought to recover prejudgment interest on the amounts for accumulated accounts receivable that it had been awarded, the trial court’s denial of that request and the Appellate Division affirmance of that denial were erroneous; they failed to address plaintiff’s claim that the Township had obligated itself contractually to pay such prejudgment interest, and the Township, as any private entity, must comply with its contractual obligations; the matter is reversed and remanded for a determination of prejudgment interest under the contract. 171 N.J.L.J. 991 CONTRACTS — Recycling — Uniform Commercial Code Cumberland County Improvement Authority v. GSP Recycling Co., Inc. , A-6598-00T1; Appellate Division; opinion by Winkelstein, J.A.D.; decided and approved for publication March 12, 2003. Before Judges Skillman, Lefelt and Winkelstein. On appeal from the Chancery Division, Cumberland County, C-35-96. [Sat below: Judge Rafferty.] DDS No. 11-2-3084 In this breach-of-contract action, where plaintiff consistently failed to deliver used newspaper to defendant-recycler that met the quality specifications in their contract, and continued to send deliveries for five months after defendant stopped making payments, and then ceased deliveries one and one-half years before the contract’s expiration, the trial court correctly found that plaintiff had breached the agreement; N.J.S.A. 12A:2-607, requiring a buyer to pay the contract rate for any goods “accepted,” is inapplicable because the contract contemplates that when the goods do not meet the quality specifications, defendant has the right to retain them and to take punitive deductions as compensation for its additional costs for sorting and transportation, thus permitting defendant to deny payment; nor was defendant in breach for failure to provide assurances under N.J.S.A. 12A:2-609, since there is no evidence that plaintiff made a demand for assurances. However, the trial judge erred in awarding damages to defendant, which failed to establish that it sustained damages as a result of plaintiff’s actions; the finding that defendant “covered” the shortfall from plaintiff’s breach by its spot market purchases throughout the year and a half remaining in the contract was error — under N.J.S.A. 12A:2-712, cover damages must be calculated at the time of the breach, and defendant offered no evidence that, as of that date, it made any attempt to secure a contract to purchase goods specifically to take the place of those not delivered by plaintiff; similarly, under N.J.S.A. 12A:2-713, the damages must be measured at the time the buyer learned of the breach; there is no statutory support for the trial judge’s calculation of damages based on successive market prices; moreover, his formula for calculating the price of newsprint to be used for damages lacked evidential support. 171 N.J.L.J. 1213 CONVERSION (see COMMERCIAL LAW) CORPORATIONS (see TAXATION) COUNTIES (see CIVIL PRACTICE, GOVERNMENT) CREDITORS’ and DEBTORS’ RIGHTS — Automobile Leases — Garage Keeper’s Liens General Electric Capital Auto Lease v. Vilante et al , A-5635-00T3; Appellate Division; opinion by Kestin, P.J.A.D.; decided and approved for publication March 10, 2003. Before Judges Kestin, Eichen and Weissbard. On appeal from the Law Division, Civil Part, Hunterdon County, L-413-99. [Sat below: Judge Pursel.] DDS No. 15-2-3050 In this action against the lessor to enforce a garage keeper’s lien for towing and storage charges incurred by the lessee of the car, the 1920 Court of Errors and Appeals decision of Stern v. Ward is binding, and the trial court correctly held that, under present law, the lessee of an auto is not, by reason of that status alone, the representative of the owner and may not incur charges for services or repairs to a car that are enforceable against the lessor by way of the garage keeper’s lien; the Legislature may wish to review existing law in light of current practices to determine if the statutory scheme fully reflects general legislative design regarding the lien-claim rights of garage keepers regarding leased cars and, in particular, the question of authority to incur storage and repair charges. 171 N.J.L.J. 1028 CRIMINAL PRACTICE (see also LEGAL PROFESSION) State v. Moore, A-4182-01T4; Appellate Division; opinion by Lisa, J.A.D.; decided and approved for publication March 12, 2003. Before Judges King, Lisa and Fuentes. On appeal from the Law Division, Middlesex County, 01-2-265-I. [Sat below: Judge Hoffman.] DDS No. 14-2-3094 Since a defendant convicted of third-degree eluding is not subject to a presumption of imprisonment, but one convicted of second-degree eluding, even if a first offender like this defendant, is subject to a presumption of imprisonment, this is an appropriate case in which to require strict construction against the State of a penal statute: eluding a law-enforcement officer in a motor vehicle is not elevated from a third-degree to a second-degree crime where, as here, the defendant’s unlawful conduct created a risk of death or injury to himself, but to no one else. 171 N.J.L.J. 1198 CRIMINAL PRACTICE — Appeals — DNA — Post-Conviction Relief State v. Hogue , A-111 September Term 2001; Supreme Court; opinion by Zazzali, J.; decided March 25, 2003. On appeal from the Law Division, Essex County. DDS No. 14-1-3211 Concerns of basic fairness and the need to conserve judicial resources dictate that defendant should be allowed to seek samples for DNA testing during the pendency of his direct appeal; the State’s argument that recently enacted N.J.S.A. 2A:84A-32a, which addresses access to DNA testing by convicted persons, supports its position that bringing a motion for DNA testing should be confined to PCR proceedings is rejected. 171 N.J.L.J. 1195 CRIMINAL PRACTICE — Armed Robbery — Assault — Lesser-Included Offenses — Terroristic Threats — Theft State v. Harris , A-1302-01T4; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication February 25, 2003. Before Judges Skillman, Cuff and Lefelt. On appeal from the Law Division, Camden County, Indictment No. 2847-09-00. [Sat below: Judge Natal.] DDS No. 14-2-2921 Where 45 minutes elapsed between the theft and defendant’s confrontation with the owner of the stolen goods and the apartment manager, in which defendant falsely claimed to have a gun, and, based on the fact that almost none of the stolen items from the apartment were recovered, there was support for the inference that defendant had transported the items to a remote location but, for some reason, chose to return to the scene of the crime, there was ample evidence from which the jury could have found that the burglary and thefts were discrete events from the subsequent confrontation and that defendant was no longer in the course of committing the theft; therefore, the trial court’s failure to instruct the jury on theft, simple assault and terroristic threats as lesser-included offenses of armed robbery requires a reversal of defendant’s conviction and a new trial. Furthermore, the trial court’s instruction regarding armed robbery did not inform the jury that a threat or reference to a gun alone is not enough for a conviction, and that there must be some tangible object possessed by the defendant that the victim believes to be a deadly weapon and, therefore, the instruction failed to adequately explain the law regarding simulated possession of a weapon; the court’s instruction that the State had to prove that defendant, through his words and gestures, intentionally led the victim to reasonably believe that he had a real gun was too vague because it failed to convey to the jury that the only kind of “gesture” that can satisfy the requirements of N.J.S.A. 2C:11-1c is one which simulates possession of a deadly weapon. 171 N.J.L.J. 818 CRIMINAL PRACTICE — Auto Theft — Joyriding — Lesser-Included Offenses State v. Roberson , Ind. No. 01-02-0186-I; Law Division, Criminal Part, Passaic County; opinion by Rothstadt, J.S.C.; decided August 12, 2002; approved for publication December 20, 2002. DDS No. 14-3-2398 Third-degree joyriding, N.J.S.A. 2C:20-10(c), is not a lesser-included offense of theft of a means of conveyance, nor is it encompassed by the consolidation provision for theft offenses in the Code, since it requires proof that the vehicle was driven “in a manner that creates a risk of injury to any person or a risk of damage to property,” elements unrelated to theft; however, fourth-degree joyriding, 2C:20-10(b), which relates solely to depriving the victim of property, is both a lesser-included and consolidated offense of theft, and the trial judge correctly charged it at the request of defendant (who had been indicted for the theft of a car and has been convicted of that fourth-degree charge), although it should not have been a consideration in granting the State’s request to charge third-degree joyriding as a lesser-included offense, and defendant’s conviction for the third-degree offense is vacated. 171 N.J.L.J. 41 CRIMINAL PRACTICE — CDS — Search and Seizure State v. Rose , A-5829-00T4; Appellate Division; opinion by Collester, J.A.D.; decided and approved for publication January 23, 2003. Before Judges Stern, Collester and Alley. On appeal from the Law Division, Monmouth County, 00-9-1510-I. [Sat below: Judge Chaiet.] DDS No. 14-2-2631 Here, where the police went to defendant’s motel room with outstanding municipal warrants but without a search warrant, and searched the bathroom in which they found heroin after defendant had been taken out of it in handcuffs, rendering him incapable of obtaining a weapon or destroying evidence, the search was outside the spatial limitations of a search incident to a valid arrest, and the court below should have granted defendant’s motion to suppress. 171 N.J.L.J. 462 CRIMINAL PRACTICE — Child Victims — Internet — Pornography — Search and Seizure — Sentencing State v. Evers , A-81/82 September Term 2001; Supreme Court; opinion by Albin, J.; concurrence by Coleman, J.; decided February 13, 2003. On appeal from and certification to the Appellate Division. DDS No. 14-1-2830 Where defendant was downloading child pornography over the Internet via an America Online account held by his wife, and sent a picture via e-mail to 51 others, including an undercover California police officer, who then obtained a search warrant that he served on AOL in Virginia to obtain the name and billing address of the account holder, which he gave to the police in New Jersey, there was no violation of defendant’s federal or state constitutional rights when the New Jersey police, based on this information, obtained a search warrant for defendant’s home and seized his computer and disks; defendant had no reasonable expectation of privacy in the content of the e-mail or in the subscriber information stored at AOL headquarters in Virginia; even if federal or state law was violated by the issuance of the California warrant on AOL in Virginia, none of New Jersey’s interests are advanced by suppressing the name and address since the police here played no role in obtaining that information. Additionally, although the billing address of an account tied to a computer screen name may not be an absolute guarantee that the holder of the computer screen name used the computer at that address to commit criminal activity, there is a fair and logical inference that the computer will probably be found there, thus providing probable cause for the warrant; also, there was probable cause to believe that the pornographic images of children would be retained on the computer of the person using the screen name. Where defendant entered a conditional guilty plea to the distribution of child pornography, the presumption of imprisonment for this second-degree offense was not overcome, and the factual findings in support of a probationary sentence were based in part on irrelevant and inappropriate factors; therefore, the trial judge erred in concluding that defendant’s imprisonment would constitute a serious injustice overriding the need for deterrence, and the matter is remanded for resentencing. 171 N.J.L.J. 754 CRIMINAL PRACTICE — Child Victims — Mental States — Prosecutors — Sleepwalking State v. Overton , A-4827-00T3; Appellate Division; opinion by Axelrad, J.T.C. (temporarily assigned); decided and approved for publication February 7, 2003. Before Judges Pressler, Ciancia and Axelrad. On appeal from the Law Division, Atlantic County, 99-02-0173C. DDS No. 14-2-2787 The prosecutor misstated the law when he said in summation that the jury could believe defendant’s testimony that he was sleepwalking when he went to the seven-year-old girl’s bedroom, and woke to find himself on top of her, and still convict him of child endangerment and child abuse, thus suggesting that those convictions could be based on a culpability state below “knowing,” which is the statutory mental state required for those offenses; because of those comments, because they were not objected to by defense counsel and were not corrected by the court, and because the judge did not instruct the jury, in accordance with the model charge, to disregard any statements by the attorneys about the law that were inconsistent with the judge’s charge, there is the possibility of an unjust result, and defendant’s convictions are reversed and the matter is remanded for a new trial. 171 N.J.L.J. 635 CRIMINAL PRACTICE — Child Victims — Sexual Assault State v. Bray , A-6081-01T3; Appellate Division; opinion by Fall, J.A.D.; decided and approved for publication January 10, 2003. Before Judges Kestin, Fall and Weissbard. On appeal from the Law Division, Warren County, Ind. No. 95-05-152. DDS No. 14-2-2521 Appellate counsel’s performance was deficient due to his failure to raise on appeal, as error, the trial court’s preclusion of evidence that the child victim of the sexual assault had previously made an accusation of sexual abuse, without conducting an evidential hearing to determine the probability of the truthfulness of the prior allegations; however, it cannot be determined on this record whether appellate counsel’s deficient performance prejudiced defendant, and the vacation of the judgment of conviction and order for a new trial by the post-conviction-relief judge are reversed and the matter is remanded. 171 N.J.L.J. 197 CRIMINAL PRACTICE — Conflicts of Interest — Post-Conviction Relief — Prosecutors State v. Harvey , A-89 September Term 2001; Supreme Court; opinion by Verniero, J.; decided January 15, 2003. On appeal from Law Division, Union County. DDS No. 14-1-2556 Here, where the trial judge in defendant’s retrial for murder, at which defendant was convicted and received a death sentence, subsequently resigned from the bench and became the Middlesex County prosecutor, but returned to the bench after defendant’s petition for post-conviction relief had been filed and the PCR court had barred any attorney in the prosecutor’s office from representing the State, his change in position rendered moot any conflict that might have arisen because of his prior status as prosecutor, and no opinion is expressed concerning that aspect of the PCR court’s decision. The bare allegation of prosecutorial misconduct in a prior proceeding is insufficient to disqualify the entire prosecutor’s office from representing the State in connection with defendant’s petition for post-conviction relief (in which he alleges that the prosecutor’s office had destroyed evidence that might have aided or exculpated him), particularly since the prosecutor has resumed the bench, the assistant prosecutor assigned to the matter has sufficiently high rank to have an unencumbered ability to investigate the allegations, and there is no suggestion of misconduct on her part; nor does the prospect that one assistant prosecutor will be called as a witness disqualify the office, particularly since the office is sufficiently large to “wall off” that assistant prosecutor, if necessary; the PCR court’s disqualification order is vacated and the matter is remanded. 171 N.J.L.J. 202 CRIMINAL PRACTICE — Constitutional Law — Graves Act — Sentencing State v. Figueroa , A-5009-00T4; Appellate Division; opinion by Wallace, J.A.D.; decided: and approved for publication March 17, 2003. Before Judges Pressler, Wallace and Hoens. On appeal from the Law Division Passaic County, Docket No. 98-06-0686-I. [Sat below: Judge Clark.] DDS No. 14-2-3139 State v. Watson recognized that the rule in McMillan v. Pennsylvania (which Apprendi v. New Jersey expressly did not overrule and which was recently adhered to in Harris v. United States) upholding the imposition by a judge of a parole-ineligibility term, within the ordinary non-enhanced sentencing range for the crime, “remains the law of the land”; State v. Johnson did not mention or overrule the Graves Act, which requires the trial court to determine whether the defendant used or possessed a firearm during the commission of the offense and, if so, to impose a mandatory parole-ineligibility term, and the contention that it was unconstitutional to impose a Graves Act sentence on defendant, convicted of second-degree conspiracy to commit robbery and first-degree armed robbery for having been the driver of the getaway car, is rejected. 171 N.J.L.J. 1215 CRIMINAL PRACTICE — Contempt — Domestic Violence — Stalking State v. Lozada , A-2295-01T4; Appellate Division; opinion by Pressler, P.J.A.D.; decided and approved for publication February 13, 2003. Before Judges Pressler, Wallace and Ciancia. On appeal from the Law Division, Somerset County, 99-7-397-I. [Sat below: Judge Ashrafi.] DDS No. 14-2-2831 Stalking is a crime of the fourth degree unless committed in violation of a restraining order, and where, as here, a defendant is charged with third-degree stalking based on his alleged violation of a domestic-violence restraining order, and also with fourth-degree contempt of that order, severed sequential trials are required; whether there was stalking should be tried first without reference to any element, including a restraining order, that could elevate it to a third-degree crime; if defendant is found guilty, the trial court should then try the degree before the same jury, first taking whatever additional proofs that are necessary and then charging the jury as to the element that would elevate the crime to the third degree; the contempt charge may be tried along with the degree of the stalking; here, where the trial court refused to sever, both the stalking conviction and the contempt conviction, which was based on the stalking, must be reversed and the matter remanded. 171 N.J.L.J. 736 CRIMINAL PRACTICE — Culpability — Jury Instructions State v. Ambroselli , A-6013-00T4; Appellate Division; opinion by Axelrad, J.T.C. (temporarily assigned); decided and approved for publication January 3, 2003. Before Judges Pressler, Ciancia and Axelrad. On appeal from the Law Division, Camden County, 00-2-429-I. [Sat below: Judge Snyder.] DDS No. 14-2-2460 Although under some circumstances it is helpful for a court instructing a jury to inform it of other mental states as a comparison, the court must clearly define the other culpability requirements in accordance with the Code of Criminal Justice and must carefully inform the jury that these other mental states are presented only for comparison and should not be considered as an element of the offenses in the case before it; here, although the trial judge correctly defined the “purposeful conduct,” required for the charges of aggravated assault on a police officer and resisting arrest in accordance with the Code, his contrasting “purposeful” and “accidental” without defining any of the levels of culpability in between had the clear capacity to mislead the jury and produce an unjust result, since it could have been construed by a reasonable jury to suggest that a conviction could be based on a culpability state below purposeful, i.e., that anything more egregious than accidental fell within the ambit of purposeful. 171 N.J.L.J. 108 CRIMINAL PRACTICE — Domestic Violence — Due Process — Harassment — Notice — Stalking H.E.S. v J.C.S. , A-132 September Term 2001; Supreme Court; opinion by Coleman, J.; decided February 6, 2003. On certification to the Appellate Division, 349 N.J. Super. 332 (App. Div. 2002). [Sat below: Judges King, Cuff and Wecker in the Appellate Division.] DDS No. 20-1-2757 In this domestic-violence matter, where defendant had to defend against a final restraining order (FRO) less than 24 hours after receiving the complaint, and was refused an adjournment after plaintiff made allegations that were not in the complaint — including that defendant had installed a camera and microphone in her bedroom — and the decision to grant a FRO was based on that allegation, defendant’s right to due process was violated; he did not have adequate time to prepare a defense and plaintiff would not have been adversely affected by an adjournment since the temporary restraining order would have remained in effect until the hearing, and the FRO is vacated and the matter is remanded for a new hearing. Here, where the parties resided in the same house but maintained separate bedrooms, the Appellate Division erred in reversing the trial court’s finding that the camera and microphone that defendant had installed in plaintiff’s bedroom presented a prima facie case of “harassment” under the Domestic Violence Act, since, in evaluating whether he had intended to severely annoy or alarm plaintiff, it failed to consider the totality of his behavior, which went beyond merely observing plaintiff in her bedroom to following her to places that he otherwise would not have known she would be and allegedly stealing checks and documents hidden in her bedroom; however, the Appellate Division correctly determined that, when viewed in the context of the parties’ history, defendant’s conduct could constitute “stalking” under the Act, since his behavior was purposeful, was against a specific person, and would cause a reasonable person in plaintiff’s position to fear bodily injury. 171 N.J.L.J. 631 CRIMINAL PRACTICE — Domestic Violence — Search and Seizure — Weapons State v. Perkins , A-1166-02T3; Appellate Division; opinion by Lintner, J.A.D.; decided and approved for publication March 10, 2003. Before Judges Petrella, Lintner and Bilder. On appeal Law Division, Warren County, 02-06-299-I. [Sat below: Judge Pursel.] DDS No. 14-2-3060 Absent, for example, a threat to use a weapon or a suspicion that a weapon is itself illegal or illegally possessed, a search and resulting seizure pursuant to the Domestic Violence Act, like any special-needs search, is not based on suspicion that a crime has been committed but is instead countenanced by a State interest, civil in nature, to protect potential victims, thereby going beyond the normal purview of law enforcement; however, although the search and seizure were constitutionally permissible here, where the officers had probable cause to believe that defendant had smacked his wife and she told them that he had a collection of guns, all of which they seized, they did not identify the illegal M-1 carbine as contraband at the time, nor was its criminal nature immediately apparent, and it was properly suppressed in defendant’s trial for possessing it. 171 N.J.L.J. 1024 CRIMINAL PRACTICE — Drug Courts — Prosecutors — Sentencing State v. Hester , A-6316-01T5; Appellate Division; opinion by Stern, P.J.A.D.; decided and approved for publication February 13, 2003. Before Judges Stern, Coburn and Alley. On appeal from the Law Division, Morris County, Indictment No. 02-07-894-A. [Sat below: Judge Harper.] DDS No. 14-2-2832 Pursuant to N.J.S.A. 2C:35-14(c), a person who, like defendant, has previously been convicted of an offense under N.J.S.A. 2C:35-5(a), or who, like defendant, has pleaded guilty to or been convicted of a crime for which there is a presumption of imprisonment under N.J.S.A. 2C:44-1d, is not eligible for “special probation” (also referred to as a “drug-court program”) if the prosecutor objects, unless the court finds that there has been a gross and patent abuse of prosecutorial discretion; here, the trial judge erred in rejecting the prosecutor’s objection to defendant’s application for a drug-court program since, under the totality of the circumstances, including defendant’s previous convictions and unsuccessful treatment on probation, and the specifics of the present offenses to which he pleaded guilty, including possession of 50 bags of cocaine with intent to distribute in a public park, it cannot be said that the prosecutor’s decision was a patent and gross abuse of discretion. 171 N.J.L.J. 792 CRIMINAL PRACTICE — Drunk Driving — Judges — State Constitution State v. Perez , A-1554-01T1; Appellate Division; opinion by Coburn, J.A.D.; decided and approved for publication January 15, 2003. Before Judges Stern, Coburn and Collester. On appeal from the Law Division, Middlesex County, 62-2001. [Sat below: Judge Hoffman.] DDS No. 14-2-2555 The municipal court judge’s remarks about defendant’s request for an interpreter, prior to his trial for drunk driving, constituted, as in Roberts, an expression of bias toward a constitutionally protected group (here, national origin) to which defendant belongs, and the trial de novo on the record, based on the Law Division judge’s acceptance of the credibility determinations of a judge who ought to have recused himself, was inconsistent with due process; group libel is reprehensible in the halls of justice and, on remand, the case should either be tried anew in the Law Division or remanded for trial before another municipal court judge. 171 N.J.L.J. 206 CRIMINAL PRACTICE — Escape — Legal Irregularity State v. Moultrie , A-4333-01T4; Appellate Division; opinion by Weissbard, J.A.D.; decided and approved for publication February 26, 2003. Before Judges Kestin, Fall and Weissbard. On appeal from the Law Division, Essex County, 00-12-3502. [Sat below: Judge Goldman.] DDS No. 114-2-2932 The legal-irregularity defense, which applies to a charge of escape, requires more than a mere deficiency in probable cause — instead, there must be some evidence, however slight, that the officer did not act in good faith under color of law; in deciding whether there is a basis to support a jury instruction on the defense, a defendant is entitled to have the court accept his version of the events; here, where the jury found defendant not guilty on every count of the eight-count indictment except escape, thus demonstrating that the jury did not lend great credence to the State’s case, the probability is high that the failure to charge the jury with the legal-irregularity defense may have caused an unjust result, and defendant’s conviction on the escape charge is reversed and the matter remanded for a new trial. 171 N.J.L.J. 820 CRIMINAL PRACTICE — Evidence — Hearsay — Prior Bad Acts — Sentencing State v. Burris , A-3032-99T4; Appellate Division; opinion by Hoens, J.A.D.; decided and approved for publication December 30, 2002. Before Judges Pressler, Ciancia and Hoens. On appeal from the Law Division, Atlantic County, 97-10-2297D. [Sat below: Judge Connor.] DDS No. 14-2-2414 Although the testimony about the telephone conversation overheard by two of the victim’s co-workers shortly before she was killed by defendant was double hearsay, because it included both the statement attributed to her and the apparent threat to kill her attributed to defendant, N.J.R.E. 805 permits introducing such a statement into evidence where, as here, a hearsay exception applies to the statement itself and a further independent basis would make the included hearsay (the statement attributed to defendant) admissible. The other hearsay issue here does not involve the sort of extensive testimony about prior behavior that was dealt with in Vandeweaghe, but a narrowly confined, single incident, not itself hearsay, that was directly relevant to the expert’s opinion that defendant was passive in his romantic relationships and was in a dissociative state when he shot his paramour to death; the trial judge discharged his gatekeeper duty to determine its relevance and properly charged the jury as to the limited role that defendant’s 1995 smashing of an ex-wife’s car could play in their evaluation of the evidence, and there was no error in admitting evidence of it either through the cross-examination of defendant’s expert or the direct testimony of the rebuttal expert. 171 N.J.L.J. 42 CRIMINAL PRACTICE — Evidence — Jury Instructions — Lesser-Included Offenses — Murder State v. Jenkins , A-5633-00T4; Appellate Division; opinion by Wallace, J.A.D.; decided and approved for publication January 8, 2003. Before Judges Wallace, Ciancia and Axelrad. On appeal from the Law Division, Atlantic County, 00-05-1100-I. [Sat below: Judge Greenberg.] DDS No. 14-2-2500 Here, where defendant was convicted of murder after his victim, whom he had struck in the head with a brick, fell down a flight of stairs and struck his head on a concrete sidewalk at the base, fracturing his skull, the trial court should have granted the State’s request to charge aggravated manslaughter and reckless manslaughter as lesser-included offenses of murder, despite defendant’s request not to charge any lesser-included offenses, since the facts clearly presented a rational basis for the jury to acquit defendant of murder and to convict him of one of these lesser-included offenses; the conviction is reversed and the matter remanded for a new trial. Although the trial court did not err in admitting a videotape of the victim’s testimony against defendant in a prior murder trial, in which defendant was acquitted, since it was highly relevant to prove an element of the witness-retaliation charge and motive for this murder charge, and was not unduly prejudicial, the court’s limiting instruction was inadequate as it did not focus the jury’s attention on the limited purpose for which the evidence was admissible, thus allowing it to find that defendant was a bad person and was probably guilty of the charges; further, the cumulative effect of the multitude of other-crimes evidence admitted without clear and complete limiting instructions deprived defendant of a fair trial. 171 N.J.L.J. 182 CRIMINAL PRACTICE — Fresh Complaints — Self-Incrimination — Sexual Assault State v. Pillar , A-2890-00T4; Appellate Division; opinion by Weissbard, J.A.D.; decided and approved for publication March 11, 2003. Before Judges Kestin, Eichen and Weissbard. On appeal from the Law Division, Middlesex County, 98-9-1339. DDS No. 14-2-3078 Where defendant was given Miranda warnings and he asked if he could say something “off the record” and the officers agreed to listen to him, his statement was involuntary and obtained in violation of Miranda; additionally, a statement concerning the offense made by one of the victims of sexual assault to a physician who was examining the victim at the request of investigating authorities was also inadmissible; the admission of defendant’s statement, either alone or in conjunction with the physician’s testimony, cannot be deemed harmless in the circumstances, which turned on defendant’s credibility weighed against that of the victims’, and his conviction is reversed and the matter is remanded for a retrial. 171 N.J.L.J. 1124 CRIMINAL PRACTICE — Gap-Time Credit — Juveniles — Sentencing State v. Franklin , A-80 September Term 2001; Supreme Court; opinion by Albin, J.; partial dissent by Verniero, J.; decided and approved for publication February 26, 2003. On certification to the Appellate Division. DDS No. 14-1-2933 A juvenile term of incarceration qualifies as a term of imprisonment under N.J.S.A. 2C:44-5b(2), and juvenile offenders are entitled to the same rights as adult defendants with respect to gap-time credit, although there is no provision in the Code of Juvenile Justice that is the equivalent of N.J.S.A. 2C:44-5b(2); further, gap-time credit is applicable to the period of imprisonment served on the first sentence after a parole revocation; here, where defendant was awarded gap-time credits only from the date of his sentence on his juvenile heroin offense until the date of his parole for that offense, the matter is remanded for a calculation and award of gap-time credits toward the sentences imposed on his robbery offenses for the time he served in custody on the heroin offense from the date of his arrest for violating parole until his sentencing on the robbery offenses. 171 N.J.L.J. 817 CRIMINAL PRACTICE — Informants State v. Williams et al , A-4764-01T2; Appellate Division; opinion by Wefing, J.A.D.; decided and approved for publication January 15, 2003. Before Judges King, Wefing and Lisa. On appeal from the Law Division, Hudson County. [Sat below: Judge Messano.] DDS No. 14-2-2554 Where the confidential informant’s role could only be considered marginal and the police did not rely on the informant to identify defendant as a participant in this robbery, the trial court erred in ordering his disclosure to defendant, and the order is reversed. 171 N.J.L.J. 206 CRIMINAL PRACTICE — Investigative Detentions — Search and Seizure State v. Nishina , A-135 September Term 2001; Supreme Court; opinion by Verniero, J.; decided March 4, 2003. On appeal from the Appellate Division. [Sat below: Judges King, Winkelstein and Fisher in the Appellate Division; Judge DeStefano in the Law Division.] DDS No. 14-1-2985 Where the police officer observed defendant and his companions at night on the property of a lower-elementary school, and the police were on alert for activities at schools because of a school massacre that had occurred five days earlier, the officer had the requisite reasonable suspicion to stop and ask defendant for his driver’s license, registration and other identifying information; once defendant returned from his car with the documents and the officer smelled marijuana emanating from his clothing, there was justification for the officer to conduct a pat-down search of defendant; furthermore, the discovery on defendant of a packet of rolling papers, which the officer reasonably believed was drug paraphernalia, and the plain-view observation of a plastic bag protruding from the interior console of defendant’s car, provided probable cause to suspect that the car contained illegal drugs; exigent circumstances also existed based on the facts that events were occurring swiftly, making it impractical for the officer to obtain a warrant once he had observed the plastic bag, and the presence of defendant’s companions, who might have attempted to remove or destroy the drugs in the time necessary to obtain the warrant; the combined elements of probable cause and exigent circumstances permitted the officer’s search of defendant’s car under the automobile exception to the warrant requirement. 171 N.J.L.J. 923 CRIMINAL PRACTICE — Juries — Peremptory Challenges State v. Fuller , A-4655-00T4; Appellate Division; opinion by Lisa, J.A.D.; concurrence by Wefing, J.A.D.; dissent by Fuentes, J.A.D.; decided and approved for publication December 31, 2002. Before Judges Wefing, Lisa and Fuentes. On appeal from the Law Division, Essex County, 2000-10-2901 and 1999-09-2896. [Sat below: Judge Cassini.] DDS No. 14-2-2436 Where defendant was an African-American and the prosecutor exercised one of his peremptory challenges to eliminate an African-American Muslim dressed in a long black garment and wearing a skull cap, based on his belief that people who are demonstrative about their religion tend to be defense-oriented rather than on the prospective juror’s membership in the Islamic faith, the exclusion was not constitutionally impermissible; people who are demonstrative about their religions do not constitute a cognizable group under State v. Gilmore, and the prosecutor’s use of one of his peremptory challenges to eliminate a white missionary is persuasive evidence that the prosecutor’s intent was not discriminatory. 171 N.J.L.J. 126 CRIMINAL PRACTICE — Jury Instructions — Murder — Self-Defense State v. Tierney , A-1538-00T4; Appellate Division; opinion by Lisa, J.A.D.; decided and approved for publication January 10, 2003. Before Judges King, Lisa and Fuentes. On appeal from the Law Division, Middlesex County, 98-10-1493-I. [Sat below: Judge DeVesa.] DDS No. 14-2-2520 In view of the extensive evidence presented and the arguments by both parties, the charge as a whole properly guided the jury to consider evidence of prior abuse and of battered woman’s syndrome in its evaluation of defendant’s claims of self-defense and reasonable provocation in the stabbing death of her live-in boyfriend; any suggestions that defendant now makes that could have improved the charge by making it more detailed or specific do not render it erroneous, particularly since she expressly declined the opportunity at trial to propose further explanations and her conviction for murder is affirmed. The trial judge’s failure to instruct the jury sua sponte on principles of imperfect self-defense, which is not a recognized defense in New Jersey but can be relevant to a defendant’s state of mind, was not reversible error here, where defendant did not request such an instruction and the trial court instructed the jury on murder, passion/provocation manslaughter, aggravated manslaughter, and reckless manslaughter. 171 N.J.L.J. 203 CRIMINAL PRACTICE — Limitations of Actions — Post-Conviction Relief — Right to Counsel State v. McIlhenny , A-4561-00T4; Appellate Division; opinion by Collester, J.A.D.; decided and approved for publication February 7, 2003. Before Judges Stern, Coburn and Collester. On appeal from the Law Division, Atlantic County, 87-12-2653-A. [Sat below: Judge Guerrera.] DDS No. 14-2-2786 There is no authority for defendant’s contention that a hearing judge must be advised of all possible exculpatory information (here, having to do with the fact that the date of the victim’s death could not be determined because his body was so decomposed when it was discovered) before accepting a voluntary and informed plea of guilty, or that counsel’s failure to so advise would constitute ineffective assistance; moreover, it is ludicrous to argue that the elderly victim arose after defendant had admittedly beaten and kicked him into unconsciousness, then went about and was seen with no noticeable injury, and returned to die in the same place defendant had left him. Here, where the murder took place in May 1987, defendant’s guilty plea was accepted on December 16, 1987, and he was sentenced on February 11, 1988, the case reached its legal and logical terminus with the affirmance on direct appeal and the denial of his earlier PCR petition; to consider legal arguments available to a defendant on direct appeal years after conviction and sentence would not serve justice — rather, it would mock the reasonable time limits of the Rules and insult the laudatory purpose of post-conviction relief; in the case of this guilty murderer, enough is enough. 171 N.J.L.J. 737 CRIMINAL PRACTICE — Municipal Ordinances — Preemption State v. Paserchia , A-2652-01T1; Appellate Division; opinion by Cuff, J.A.D.; decided and approved for publication January 6, 2003. Before Judges Skillman, Cuff and Lefelt. On appeal from the Law Division, Essex County, MA-01-060. [Sat below: Judge Isabella.] DDS No. 14-2-2474 N.J.S.A. 2C:33-2 and the municipal ordinance banning disorderly conduct address the same activity, and nothing about defendant’s behavior or the character of the community implicates unique local concerns requiring an individualized response by the municipality; furthermore, the ordinance does not require purposeful conduct, which is an integral part of the Code’s prohibition against disorderly conduct (perhaps in recognition of the difficult constitutional problems posed by prohibitions against offensive speech) and, as Felder stated, such an inconsistency “underscores the point that the Code and the local ordinance deal with the same criminal conduct in a different manner, and consequently the ordinance is preempted”; defendant’s conviction for violating the ordinance is reversed. 171 N.J.L.J. 105 CRIMINAL PRACTICE — No Early Release — Plea Agreements — Sentencing State v. Freudenberger , A-0161-01T4; Appellate Division; opinion by Lisa, J.A.D.; decided and approved for publication March 10, 2003. Before Judges King, Lisa and Fuentes. On appeal from the Law Division, Burlington County, 00-01-0002-I. [Sat below: Judge Almeida.] DDS No. 14-2-3059 A guilty plea to an offense subject to the No Early Release Act may be withdrawn if the defendant was not first informed of the special parole-supervision provision mandated by NERA; here, where the trial judge did not so inform defendant at the plea hearing and the portion of the plea form concerning mandatory parole supervision was not completed, the matter is remanded; if, on remand, it is determined that she knew before her plea of guilty to aggravated manslaughter of the provision and understood it, the trial judge’s failure to inform her of it would not have been prejudicial and would not justify withdrawal of the plea, but, if it is determined that she did not know of it or understand it, she would be entitled to withdraw the plea. 171 N.J.L.J. 1022 CRIMINAL PRACTICE — No Early Release — Sentencing — Young Adult Offenders State v. Corriero , A-2514-01T5; Appellate Division; opinion by Conley, P.J.A.D.; decided and approved for publication January 31, 2003. Before Judges Conley, Carchman and Parrillo. On appeal from the Law Division, Middlesex County, 98-9-1265-I. [Sat below: Judge Paley.] DDS No. 14-2-2702 Sentencing under the Young Adult Offenders Act (which provides for indeterminate sentences and precludes a parole disqualifier) is not available to a defendant who is convicted for a crime to which the No Early Release Act (which mandates, without exception, a parole disqualifier) applies, and the sentencing judge therefore did not err in not imposing a YAOA sentence on defendant, who pleaded guilty to second-degree vehicular homicide, to which NERA applies. 171 N.J.L.J. 562 CRIMINAL PRACTICE — No-Knock Warrants — Search and Seizure State v. Jones , A-4414-01T4; Appellate Division; opinion by Weissbard, J.A.D.; decided and approved for publication February 28, 2003. Before Judges Kestin, Fall and Weissbard. On appeal from the Law Division, Cape May County, 01-07-0456. [Sat below: Judge Alvarez.] DDS No. 14-2-2965 Although the knock-and-announce requirement for executing a search warrant, mandated by centuries of common law as well as the State and Federal Constitutions, is not absolute, the police must articulate some reason specific to the crime, to the person under investigation, or to some other permissible factor that leads to a reasonable belief that destruction of evidence is more than a hypothetical possibility, to satisfy that exception; also, a suspect’s stale prior arrest for assault with a weapon is not a basis for a reasonable suspicion that police safety is at risk, and under the circumstances of this case, where the confidential informant who made three controlled buys of alleged rock cocaine never saw any weapons in the house, and there was no indication in the search-warrant application that what had been bought was actually cocaine, probable cause was not established; defendant’s motion to suppress evidence seized pursuant to the no-knock warrant should have been granted. 171 N.J.L.J. 900 CRIMINAL PRACTICE — Plea Bargains — Sentencing — Vehicular Homicide State v. Lebra, etc. , A-2454-01T3, A-2943-01T3; opinion by Wefing, J.A.D.; decided and approved for publication February 20, 2003. Before Judges King, Wefing and Wecker. On appeal from the Law Division, Salem County, 00-03-00096-I (Lebra), 01-6-307-I (Comeaux). [Sat below: Judge Forester.] DDS No. 14-2-2876 The presumption of imprisonment for a second-degree crime remains even where the defendant has pled guilty pursuant to a plea agreement that calls for him to be sentenced as a third-degree offender, and the presumption is not satisfied by a term of imprisonment imposed as a condition of probation; that the mitigating factors may substantially outweigh the aggravating factors does not obviate the presumption, and mere invocation of the serious-injustice exception to it will not suffice without a detailed explanation of its application to the facts and a reasoned demonstration that the defendant’s case is one of the rare cases in which the otherwise paramount goal of deterrence has been overridden; defendant’s probationary sentence for vehicular homicide must be reversed and the matter remanded for resentencing. The trial court was not required to “reject” the plea bargain of another defendant, who also pleaded guilty to vehicular homicide, in order to impose a sentence lower than was bargained for (four years’ imprisonment instead of five), since it is only where a trial court concludes that it should impose a greater sentence, or disagrees with a “contract plea” under N.J.S.A. 2C:35-12, that it is called on to “reject” a plea bargain; furthermore, a plea bargain under which the defendant agrees that his attorney will not argue for a lesser term at sentencing than that set forth in the plea bargain is invalid and unenforceable. 171 N.J.L.J. 795 CRIMINAL PRACTICE — Probation State v. Thomas , A-1488-00T4, A-1493-00T4; Appellate Division; opinion by Payne, J.A.D.; decided and approved for publication December 31, 2002. Before Judges Havey, Wells and Payne. On appeal from the Law Division, Mercer County, Ind. Nos. 96-03-290 and 98-08-796. [Sat below: Judge Koenig.] DDS No. 14-2-2438 Since a notice of violation of probation in the form of a petition for revocation was not filed until approximately eight months after defendant’s probationary period had expired and no alternative proceedings in conformance with N.J.S.A. 2C:45-3 had occurred before then, the attempt to revoke his probation was untimely and the trial court thus lacked jurisdiction over the revocation proceeding; the court’s determination that probation had been violated is reversed and the sentences imposed as a result are vacated. 171 N.J.L.J. 106 CRIMINAL PRACTICE — Regulatory Stops — Search and Seizure — Taxicabs State v. White , Indictment No. 2-4-1651; Essex County; Law Division; opinion by Vena, J.S.C.; decided December 3, 2002; approved for publication March 7, 2003. DDS No. 14-3-2311 The program established by the Newark police department of random, suspicionless and warrantless stops of taxicabs to increase driver safety is unconstitutional under the test announced in Brown v. Texas, and the bag that contained vials that tested positive for cocaine, which was seized when the cab in which defendant was riding was stopped pursuant to the program, is suppressed; although there is a legitimate public interest in protecting the safety of taxi drivers, there was no evidence of the effectiveness of random, suspicionless stops or of the utility of less intrusive methods, drivers and owners could not opt out of the program so there was no consent, and there were no external decals alerting police to a consenting driver or internal decals so advising passengers; moreover, the State’s regulatory function does not authorize warrantless suspicionless stops since the seizures are not necessary to achieve driver safety or to further the regulatory scheme, and the inspection is not a constitutionally adequate substitute for a warrant as it does not advise the property owner that a search can be made pursuant to law and properly define the scope of the search and it allows unfettered discretion of the inspecting officer. 171 N.J.L.J. 1226 CRIMINAL PRACTICE — Resisting Arrest State v. Brannon , A-1932-01T4; Appellate Division; opinion by Fuentes, J.A.D.; decided and approved for publication March 3, 2003. Before Judges King, Lisa and Fuentes. On appeal from the Law Division, Mercer County, 00-9-963-I. [Sat below: Judge Smithson.] DDS No. 14-2-2976 In the context of third-degree resisting arrest, 2C:29-2a(3)(a), “physical injury” means bodily injury as defined in 2C:11-1a, and a jury must be instructed that using or threatening to use “physical force or violence” means conduct that creates or threatens to create a substantial risk of causing physical injury to the public servant or another; here, because the trial judge’s supplemental instruction to the jury did not include the element of “conduct creating or threatening to create substantial risk of physical injury,” and, therefore, improperly relieved the State of its burden of proof, the conviction is reversed. 171 N.J.L.J. 912 CRIMINAL PRACTICE — Search and Seizure State v. Linton , A-6118-01T2; Appellate Division; opinion by Coburn, J.A.D.; decided and approved for publication December 30, 2002. Before Judges Stern, Coburn and Alley. On appeal from the Law Division, Union County, 01-11-1307-I. [Sat below: Judge Barisonek.] DDS No. 14-2-2426 Even assuming that defendant, at best a transient squatter, had a subjective expectation of privacy when he secreted his drugs in the couch of an abandoned building in which he had no legal interest, such an expectation is not constitutionally reasonable, and the evidence of those drugs should not have been suppressed. 171 N.J.L.J. 52 State v. Myers, A-5630-01T1; Appellate Division; opinion by Winkelstein, J.A.D.; decided and approved for publication January 17, 2003. Before Judges Skillman, Cuff and Winkelstein. On appeal from the Law Division, Passaic County, I-01-08-0809. [Sat below: Judge Gannon.] DDS No. 14-2-2584 Where the police had seen defendant transport drugs from his apartment to another building, on the same street a block away, at which a search pursuant to a warrant revealed illegal narcotics, a weapon, and ammunition for another weapon, it was reasonable for the police to believe that defendant would learn of the search and possibly return and destroy any drugs or contraband in his apartment, and that he would have access to a weapon, exigent circumstances existed for the police to enter his garage to better observe his apartment while a search warrant was being obtained for it; the trial court’s order granting defendant’s motion to suppress the evidence seized from his apartment is reversed. 171 N.J.L.J. 312 CRIMINAL PRACTICE — Sentencing State v. Olsvary , A-1471-01T4; Appellate Division; opinion by Conley, P.J.A.D.; decided and approved for publication January 31, 2003. Before Judges Conley, Carchman and Parrillo. On appeal from the Law Division, Criminal Part, Monmouth County, Ind. Nos.00-12-02084; 01-07-00781; 00-12-01481. DDS No. 14-2-2701 Although N.J.S.A. 2C:43-6.4e(1) mandates an extended term for a person who, while sentenced to community supervision for life for certain sexual offenses, commits certain specific crimes, N.J.S.A. 2C:43-7, which establishes the parameters to guide sentencing judges on extended terms of imprisonment, does not establish any parameters for a N.J.S.A. 2C:43-6.4e(1) extended term, and without such parameters a sentencing judge’s discretion is impermissibly unfettered; here, where defendant had previously been convicted under N.J.S.A. 2C:24-4 and sentenced to community supervision for life, and then entered a guilty plea to fourth-degree criminal sexual contact and fourth-degree violation of his community-supervision sentence, his sentence to an extended term of three years for violating his community supervision is vacated and the matter remanded for further proceedings. 171 N.J.L.J. 541 CRIMINAL PRACTICE — Sex Offenders In the Matter of the Civil Commitment of V.A. , A-00008-02T3; Appellate Division; opinion by Fuentes, J.A.D.; decided and approved for publication January 21, 2003. Before Judges King, Wecker and Fuentes. On appeal from the Law Division, Essex County, SVP-26-99. DDS No. 14-2-2592 Based on the record, the conditions imposed under the discharge plan releasing respondent, who has a long and persistent history of sexual offenses, into the community do not provide the gradual de-escalation of restraints required by In re the Commitment of E.D.; the order of discharge is vacated and the Department of Human Services is directed to develop and implement a comprehensive program of intermediate levels of restraints for individuals committed under the Sexually Violent Predator Act, with the ultimate goal of such a program to be the individual’s full discharge into the community. 171 N.J.L.J. 320 CRIMINAL PRACTICE — Sexually Violent Predators — Treatment In the Matter of the Commitment of K.D. , A-3850-00T3; Appellate Division; opinion by King, P.J.A.D.; decided and approved for publication January 22, 2003. Before Judges King, Lisa and Fuentes. On appeal from the Law Division, Essex County, SVP-132-00. DDS No. 14-2-2610 An individual committed under the Sexually Violent Predator Act (SVPA) has the right to question whether he has been receiving appropriate treatment, especially in light of any disability, and may move for a prompt hearing on the claim of specific needs geared to his particular situation at any time after the initial hearing; the matter is remanded for further proceedings at which appellant, committed under the SVPA, may challenge his diagnosis and treatment as inappropriate in light of his alleged developmental disability and may offer proof of reasonable alternatives. 171 N.J.L.J. 328 CULPABILITY (see CRIMINAL PRACTICE) DAMAGES (see CONSUMER PROTECTION) DATING PARTNERS (see FAMILY LAW) DEFAMATION (see CIVIL PRACTICE, TORTS) DEFAULT JUDGMENTS (see CIVIL PRACTICE) DESIGN DEFECTS (see TORTS) DISABILITIES (see APPEALS) DISCRIMINATION (see CIVIL RIGHTS) DIVORCE COMPLAINTS (see FAMILY LAW) DNA (see CRIMINAL PRACTICE) DOMESTIC VIOLENCE (see CRIMINAL PRACTICE, EVIDENCE, FAMILY LAW) DOUBLE JEOPARDY (see GOVERNMENT) DRUG COURTS (see CRIMINAL PRACTICE) DRUNK DRIVING (see CRIMINAL PRACTICE) DUAL REPRESENTATION (see LEGAL PROFESSION) DUE PROCESS (see CRIMINAL PRACTICE) EASEMENTS (see REAL PROPERTY) EDUCATION (see APPEALS) ELECTION LAW — Redistricting McNeil et al v. The Legislative Apportionment Commission et al , A-1027-01T5; Appellate Division; opinion by Petrella, P.J.A.D.; decided and approved for publication January 22, 2003. Before Judges Petrella, Lintner and Parker. On appeal from the Law Division, Mercer County. [Sat below: Judge Feinberg.] DDS No. 21-2-2602 The motion judge erred in concluding that the municipal-districting standard in Article IV, section 3, paragraph 1 of the New Jersey Constitution was abrogated by Scrimminger v. Sherwin; therefore, since plaintiffs have met their burden by showing that Jersey City and Newark were divided into three districts instead of two, summary judgment in favor of defendant, The Legislative Apportionment Commission, is reversed and the matter is remanded to the Commission for preparation of a new redistricting plan in compliance with the Constitution’s municipality-districting standard. 171 N.J.L.J. 329 EMANCIPATION (see FAMILY LAW) EMINENT DOMAIN (see REAL PROPERTY) EMPLOYEE DISHONESTY (see INSURANCE LAW) EMPLOYMENT (see TRANSPORTATION) EMPLOYMENT — Accidental Disability — Police Esposito v. Police and Fireman’s Retirement System , A-4928-01T5; Appellate Division; opinion by Braithwaite, J.A.D.; decided and approved for publication March 7, 2003. Before Judges Petrella, Braithwaite and Parker. On appeal from a Final Administrative Determination of the Board of Trustees of the Police and Fireman’s Retirement System, PFRS3-10-25479. DDS No. 56-2-3040 Here, where petitioner-police officer had injured his knee, requiring surgery, when he jumped out of the way of an oncoming speeding car that had ignored his signal while he was directing traffic, the Board of Trustees of the Police and Fireman’s Retirement System erred in concluding that it was not a “traumatic event” and in rejecting the administrative law judge’s conclusion that petitioner’s application for accidental disability benefits should be granted, since he met the three-prong test of Kane v. Board of Trs: his injury was not induced by the stress or strain of the normal work effort, it originated from his involuntary exposure to the source of the harm (although jumping out of the way requires a voluntary act, he was not the source of the harm), and he was the victim of a great rush of force or power that he did not bring into motion; had he been struck and injured by the car, the third prong would obviously have been met, and there is no basis for reaching a different conclusion because he jumped to avoid being struck. 171 N.J.L.J. 1012 EMPLOYMENT — Age Discrimination — Burdens — Evidence McDevitt v. Bill Good Builders, Inc. , A-123 September Term 2001; Supreme Court; opinion by LaVecchia, J.; decided March 5, 2003. On certification to the Appellate Division. [Sat below: Judges King, Cuff and Winkelstein in the Appellate Division; Judge Fratto in the Law Division.] DDS No. 25-1-2995 The lower courts correctly determined that plaintiff failed to demonstrate a prima facie case that the termination of his employment was motivated by his age, rather than by a legitimate reduction in force, under the four-prong test of McDonnell Douglas Corp. v. Green; however, plaintiff alleges that he has presented such direct evidence of discriminatory purpose as to entitle him, under Price Waterhouse v. Hopkins, to a shift of the burden of persuasion, and the summary judgment dismissing the case is reversed and the matter is remanded for the trial court to conduct a Rule 104 hearing to resolve whether defendant’s president’s having allegedly nodded his head, when an employee allegedly declared, in his presence, that plaintiff had been terminated because he was too old for the job, constituted an adoptive admission, and to determine whether, under the totality of the circumstances, that adoptive admission would meet the Price Waterhouse direct-evidence test. 171 N.J.L.J. 994 EMPLOYMENT — Arbitration — Whistleblowers Leodori v. Cigna Corporation et al , A-120 September Term 2001; Supreme Court; opinion by Verniero, J.; decided February 13, 2003. On certification to the Appellate Division. [Sat below: Judges Conley, Rodriguez and Lisa in the Appellate Division; Judge Vogelson in the Law Division.] DDS No. 25-1-2825 Although the waiver-of-rights provision in an employee handbook distributed by defendant-employer, which requires employees to submit employment-related claims to an arbitrator rather than to a jury, is unambiguous, plaintiff did not clearly agree to it, and therefore the waiver is invalid as applied to him; Woolley‘s implied-contract doctrine does not extend to a waiver-of-rights agreement, and Niscosia does not suggest that, by merely receiving a handbook that contains an arbitration clause, employees are bound to that clause when they do not seek to enforce it or the handbook generally. Defendant’s contention that reinstating plaintiff’s Law Division complaint, which alleges that it fired him in violation of New Jersey’s Conscientious Employee Protection Act (CEPA), would run afoul of the Federal Arbitration Act is rejected — this opinion does no more than conclude, consistent with basic contract law, that an arbitration provision waiving statutory rights cannot be enforced against employees who do not sign or otherwise explicitly indicate their agreement to it; the Appellate Division’s judgment is affirmed. An employer and its employee may agree to arbitrate their disputes by referring generally to an arbitration policy in a separate writing, provided that the policy itself clearly reflects the employee’s knowing and voluntary waiver of rights. 171 N.J.L.J. 727 EMPLOYMENT — Satisfaction Clauses Silvestri v. Optus Software Inc. , A-95 September Term 2001; Supreme Court; opinion by LaVecchia, J.; dissent by Zazzali, J.; decided January 23, 2003. On certification to the Appellate Division. [Sat below: Judges Havey and Coburn in the Appellate Division; Judge Richardson in the Law Division.] DDS No. 25-1-2622 When an employment contract reserves to the employer the right to terminate employment for the employee’s failure to perform to its satisfaction, a subjective test of performance governs unless some language in the contract shows that the parties intended an objective standard; here, where plaintiff attacks only the reasonableness of defendant’s dissatisfaction with his job performance, and nothing in the satisfaction clause suggests that dissatisfaction was to be measured by any standard other than the employer’s good-faith unilateral judgment, applying the test of genuineness, plaintiff has not demonstrated that a dispute exists requiring submission to a jury, and the Appellate Division erred in reversing the trial court’s entry of summary judgment in favor of defendant; Fitzmaurice v. Van Vlaanderen Machine Co. is distinguished. 171 N.J.L.J. 464 EMPLOYMENT — Whistleblowers Cosgrove v. Cranford Board of Education et al , A-2485-01T1; Appellate Division; opinion by Petrella, P.J.A.D.; decided and approved for publication January 14, 2003. Before Judges Petrella, Lintner and Parker. On appeal from the Law Division, Union County, L-1972-00. [Sat below: Judge Pisansky.] DDS No. 25-2-2537 The trial judge correctly dismissed the claim of plaintiff, a school custodian, under the Conscientious Employee Protection Act, that his employment was terminated because he had filed a grievance with his union regarding the school district’s method of distributing overtime, since he failed to satisfy the threshold requirement of a CEPA claim that he identify a statute, rule, or regulation or other statutorily specified clear mandate of public policy underlying his complaint; the allegedly unfair distribution of overtime is not a practice involving a clear mandate of public policy as contemplated by the CEPA and is therefore not cognizable under the statute. 171 N.J.L.J. 204 ENDANGERED SPECIES (see ENVIRONMENTAL LAW) ENVIRONMENTAL LAW — Administrative Law — Appeals — Endangered Species In the Matter of the New Jersey Pinelands Commission Resolution PC4-00-89, etc. , A-1781-00T2, A-5684-00T5; Appellate Division; opinion by Wallace, J.A.D.; decided and approved for publication January 3, 2003. Before Judges Pressler, Wallace, and Hoens. A-1781-00T2 on appeal from the New Jersey Pinelands Commission; A-5684-00T2 on appeal from the Law Division, Burlington County, L-3401-98. [Sat below: Judge Sweeney.] DDS No. 01-202455 Here, where the Law Division remanded the developers’ challenge to the Pinelands Commission’s authority to review the local planning board’s final approvals to the Commission for further consideration and, while the matter was on remand to the Office of Administrative Law from the Commission, appellant-preservation groups filed a counterclaim alleging that a settlement agreement violated the Endangered and Nongame Species Conservation Act (ENSCA), pursuant to the Environmental Rights Act (ERA), and the parties, except for appellants, then reached a settlement of the administrative matter, appellants have standing under the ERA to bring this action, and the trial court, which retained jurisdiction under N.J.S.A. 2A:35A-8, should have reviewed the administrative action, but, in light of the affirmance here of the Commission’s approval of the settlement, which modified a residential development plan in order to preserve the habitat and protect a local population of timber rattlesnakes, an endangered species in New Jersey, original appellate jurisdiction is exercised and it is held that the Commission’s and the Department of Environmental Protection’s approval of the settlement was supported by ample evidence and is in conformance with law; there is no conflict between the authority of DEP under ENSCA and that of the Commission under the Comprehensive Management Plan when regulating for the protection of threatened species — the laws are complementary and the two agencies should, as they did here, exercise their powers in a harmonious fashion. 171 N.J.L.J. 119 ESCAPE (see CRIMINAL PRACTICE) ETHICS (see CIVIL PRACTICE) EVICTIONS (see REAL PROPERTY) EVIDENCE (see also CRIMINAL PRACTICE, EMPLOYMENT, FAMILY LAW) EVIDENCE — Domestic Violence — Judges — Polygraphs Capell v. Capell , A-3446-01T5; Appellate Division; opinion by Cuff, J.A.D.; decided and approved for publication March 7, 2003. Before Judges Skillman, Cuff and Lefelt. On appeal from the Chancery Division, Family Part, Monmouth County, FV-13-1334-02. DDS No. 20-2-3032 Although the final restraining order entered here pursuant to the Prevention of Domestic Violence Act is affirmed, the trial judge’s suggestion (which was not carried out) that, in this “he-said she-said” situation, both husband and wife take lie-detector tests is disapproved; it is apparent that he was prepared to abdicate his decision-making responsibilities and to adjudicate the matter solely based on the results of a test by an expert, which trial judges have been admonished many times not to do — moreover, credibility determinations are reserved to the trier of fact, not to an expert; the initial consent of the parties did not legitimize the procedure — once it was suggested, a party who resisted would have reasonable concerns that the trial judge might draw an adverse inference from a reluctance to take the test. 171 N.J.L.J. 995 EVIDENCE — Video Simulations Persley v. New Jersey Transit Bus Operations et al , A-6259-99T3; Appellate Division; opinion by Lisa, J.A.D.; concurrence by Wecker, J.A.D.; decided and approved for publication January 17, 2003. Before Judges Wefing, Wecker and Lisa. On appeal from the Law Division, Morris County, L-524-99. [Sat below: Judge Cramp.] DDS No. 19-2-2570 The trial judge’s question about whether the defense expert’s video illustration accurately depicted what would happen to a person of the same height and build as plaintiff, in the same type of accident, was aimed at determining the admissibility of the video illustration — i.e., to confirm that the expert had taken into account plaintiff’s actual measurements in designing the virtual person seen in the simulation — and, while these questions should have been asked outside of the presence of the jury during a proper N.J.R.E. 104 hearing, they were not an improper attempt to endorse the animation. 171 N.J.L.J. 320 EX PARTE ORDERS (see FAMILY LAW) EXEMPTIONS (see TAXATION) EXPERT TESTIMONY (see CIVIL PRACTICE, WORKERS’ COMPENSATION) FAMILY LAW — Appeals — Child Abuse and Neglect — Evidence New Jersey Division of Youth and Family Services v. L.A. , A-5427-01T4; Appellate Division; opinion by Cuff, J.A.D.; decided and approved for publication January 27, 2003. Before Judges Skillman, Cuff and Winkelstein. On appeal from the Chancery Division, Family Part, Cumberland County, FN-06-67-02. DDS No. 28-2-2650 In this appeal from a finding of child abuse and neglect against a mother, the trial judge erred in denying the mother’s request for an in camera interview with the older child, then 12 years old, and improperly admitted that child’s prior statement to a Division of Youth and Family Services caseworker (that her mother had invited her father to their home and had taken the younger sibling to visit the father, both in violation of a no-contact order) and improperly based several findings of fact on the uncorroborated statement, and the matter is therefore reversed and remanded for further proceedings at which the child, who is now 13 years old, should testify under such conditions as are in her best interests. In the two-step procedure for adjudicating a charge of abuse and neglect, an order finding that a child has been abused or neglected is interlocutory (the order following the dispositional hearing is the only final order) and, by treating such a finding as a final order, a court implicitly condones non-compliance with the scheme enacted by the Legislature, which requires a final order as soon as possible after the removal of a child from her home; courts should be receptive to motions for leave to appeal where the dispositional hearing does not take place close in time to the finding. 171 N.J.L.J. 485 FAMILY LAW — Appeals — Domestic Violence — Notice Vendetti v. Meltz , FV-02-966-03; Chancery Division, Bergen County; opinion by Martinotti, J.S.C.; decided October 21, 2002; approved for publication March 7, 2003. DDS No. 20-4-3100 When, as here, a defendant against whom a temporary restraining order has been entered, pursuant to the Prevention of Domestic Violence Act, requests an immediate appeal under N.J.S.A. 2C:25-28i, the plaintiff must be given reasonable notice that must specify the type of relief that the defendant is seeking, and the appeal hearing should be limited to issues encompassed by the requested relief; the appeal hearing may be converted into a final hearing, but only if both parties consent and are fully aware of the ramifications of doing so; since plaintiff was not given notice that the TRO she had obtained could be vacated, emergency relief was not granted at the appeal hearing and the matter is carried to the scheduled final hearing. 171 N.J.L.J. 1226 FAMILY LAW — Child Placement New Jersey Division of Youth and Family Services v. M.F. et al , A-3957-01T4; Appellate Division; opinion by Havey, P.J.A.D.; decided and approved for publication February 20, 2003. Before Judges Havey, Rodriguez and Wells. On appeal from the Chancery Division, Family Part, Mercer County, FN-11-31-98. [Sat below: Judge Council.] DDS No. 28-2-2872 Decisions regarding the placement of a child under both the federal Adoption and Safe Families Act of 1997 and the state Child Placement Review Act must ensure the safety and health of the child and serve the child’s best interests, and reversal for technical noncompliance with the time period in N.J.S.A. 30:4C-61.2a(2) would violate their express purpose and is thus inappropriate; here, where the first permanency hearing was held 17 days after the 12-month time period in the statute, the inconsequential deviation does not warrant reversal of the trial judge’s placement decision giving physical custody of the child to her maternal great aunt, nor did the trial judge err in rejecting the Division’s initial permanency plan, which recommended foster-parent adoption, since that plan failed to consider whether the aunt (who had indicated a willingness to care for the child and who had custody of one of her siblings) would be an appropriate placement; further, the judge did not incorrectly apply the “serious and enduring” harm test, rather than the “best interests” test, or apply a presumption in favor of relative placement, in making his placement decision. 171 N.J.L.J. 814 FAMILY LAW — Child Support Ordukaya v. Brown , A-6908-00T1; Appellate Division; opinion by Carchman, J.A.D.; decided and approved for publication January 31, 2003. Before Judges Conley, Carchman and Parrillo. On appeal from the Chancery Division, Family Part, Salem County, FM-17-290-00. [Sat below: Judge Farrell.] DDS No. 20-2-2694 Here, where the property settlement plaintiff-mother had negotiated, without legal representation, with defendant-father failed to explain the computations that resulted in a child-support award well below the guidelines, there was no completed guidelines worksheet, no determination of “good cause” for the deviation, and no consideration of whether the children’s best interests were served by deviating from the guidelines, the trial court erred in denying plaintiff-mother’s motion to modify the child-support award; the matter is remanded for a hearing to consider the quantum of support, the application of the guidelines, and appropriate findings consistent with Rule 5:6A and Appendix IX-A, subparts 21 and 22. 171 N.J.L.J. 543 FAMILY LAW — Child Support — Emancipation Patetta v. Patetta , A-1449-01T5; Appellate Division; opinion by Collester, J.A.D.; decided and approved for publication March 3, 2003. Before Judges Coburn, Collester and Alley. On appeal from the Chancery Division, Family Part, FM-12-2713-01D. [Sat below: Judge Happas.] DDS No. 20-2-2966 The judge below correctly denied plaintiff’s request to have his 18-year-old son declared emancipated, pursuant to the divorced parties’ property settlement, and to terminate his support obligation for him; no specific age equates to a child’s emancipation — age 18 is only prima facie and not conclusive proof — and the parental duty to support a child may not be waived or terminated by the other parent’s agreement; here, where the son is living at his mother’s home, dependent on his parents for his basic needs and proper support while attending college full-time, he is entitled to continued support from his father. 171 N.J.L.J. 922 FAMILY LAW — Dating Partners — Domestic Violence Tribuzio v. Roder , A-1480-01T3; Appellate Division; opinion by Lisa, J.A.D.; decided and approved for publication January 10, 2003. Before Judges King, Lisa and Fuentes. On appeal from the Chancery Division, Family Part, Somerset County, FV-18-502-02. [Sat below: Judge Friend.] DDS No. 20-2-2514 As Sperling concluded, although a literal reading would appear to confer protected-person status to any former dating partner, that would be an illogical construction of N.J.S.A. 2C:25-19d; a qualitative analysis is required, by weighing and balancing the nature and duration of the prior relationship, the length of time since it ended, the nature and extent of any intervening contacts, the nature of the event that precipitated the request for a restraining order, and any other appropriate factors; here, where plaintiff, at the time of the precipitating event, had been subjected, during the three years since the parties stopped dating, to harassment by her former boyfriend related to and arising out of their past relationship, the court below correctly found that she is entitled to the special protection provided by the Prevention of Domestic Violence Act. 171 N.J.L.J. 195 FAMILY LAW — Divorce Complaints — Reinstatement Higgins v. Higgins , FM-05-175-02; Chancery Division; Family Part; Cape May County; opinion by Baker, J.S.C.; decided November 21, 2002; approved for publication March 7, 2003. DDS No. 20-4-3180 A complaint for divorce may be reinstated pursuant to Rule 1:13-7, but the effective date of the reinstatement should not be retroactive to the filing date of the original complaint, as in civil cases, but should be the filing date of the motion to reinstate the complaint. 171 N.J.L.J. 1225 FAMILY LAW — Ex Parte Orders — Hearings — Jurisdiction — UCCJA Peregoy v. Peregoy , A-2684-01T2; Appellate Division; opinion by Wecker, J.A.D.; decided and approved for publication March 11, 2003. Before Judges King, Wecker and Fuentes. On appeal from the Chancery Division, Family Part, Ocean County, FM-15-1000-93. [Sat below: Judges Pogarsky and Piscal.] DDS No. 20-2-3065 Here, where the parties agreed, when they divorced in New Jersey, that plaintiff-mother would have primary residential custody of their one-year-old son and could move with him to Oklahoma, with defendant-father having substantial blocks of parenting time, and that jurisdiction over custody and visitation issues would remain in New Jersey, the Family Part gave undue weight to the jurisdictional agreement and did not consider the Uniform Child Custody Jurisdiction Act (UCCJA) factors when it exercised jurisdiction over the father’s ex parte application to change custody when the boy was eight; the matter is remanded for a determination of whether New Jersey remains the appropriate state to exercise jurisdiction. A bright-line rule holding a consent-to-jurisdiction agreement binding will not be imposed here, either for a prescribed period of time or until the child’s emancipation; so long as one parent remains a New Jersey resident, as here, the other party’s consent to the continuing jurisdiction of the New Jersey courts establishes the minimum basis for the court’s continuing jurisdiction, but that consent is only one factor to be weighed in deciding whether to exercise jurisdiction pursuant to the UCCJA; the parties cannot agree in advance to ignore the UCCJA, or for the court to proceed contrary to it. A second issue dramatized by this case is the necessity for plenary proceedings and detailed findings before a change in custody is ordered; the Family Part clearly erred in summarily changing primary physical custody of this eight-year-old child from his mother, with whom he had been living in Oklahoma for the last seven years, to his father in New Jersey; were it not for the passage of time since the order enjoining this child’s return to his mother in Oklahoma, at the end of his regular eight-week summer visit in New Jersey, an immediate return to the status quo ante would be ordered, but, since the child has now been living with his father in New Jersey since the summer of 2001, the matter is, instead, remanded for further proceedings. The Family Part’s failure to interview the child, as the mother requested, or to explain that failure, is further evidence that there was an insufficient record to justify the final order changing custody from the mother to the father; this case would likely benefit from the appointment of a guardian ad litem to protect the child’s best interests and to present an independent perspective. 171 N.J.L.J. 1119 FEDERAL EMPLOYER’S LIABILITY ACT (see TORTS) FIREFIGHTERS (see WORKERS’ COMPENSATION) FRAUD (see CONSUMER PROTECTION) FRESH COMPLAINTS (see CRIMINAL PRACTICE) GAP-TIME CREDIT (see CRIMINAL PRACTICE) GARAGE KEEPER’S LIENS (see CREDITORS’ and DEBTORS’ RIGHTS) GENETIC COUNSELING (see TORTS) “GOOD TIME CREDITS” (see CONSTITUTIONAL LAW) GOVERNMENT — 911 Calls — Public Records Serrano v. South Brunswick Township et al , A-2708-02T5 and A-3110-02T5; Appellate Division; opinion by Alley, J.A.D.; concurrence by Coburn, J.A.D.; decided and approved for publication March 19, 2003. Before Judges Stern, Coburn, and Alley. On appeals from a final determination of the New Jersey Government Records Council, Case No. 2002-33. DDS No. 52-2-3168 Where a 911 call was made to the police and a few hours later the caller shot his father, and the caller, who is now on trial for murder, does not object to the release of the 911 tape to the public, the Government Records Council correctly determined that the tape should be released; because the tape falls within the definition of a “government record” in N.J.S.A. 47:1A-1.1, and because the law requires that such tapes be made and kept, it does not qualify as a “criminal investigatory record”; also, assuming the tape was a public record when created, it did not become retroactively confidential simply because the prosecutor obtained the tape, and given the stated public policy in the Open Public Records Act that records should be readily accessible, and given the caller’s consent, the public has a greater interest in the release of this particular tape than in its suppression; furthermore, the release of the tape by the prosecutor pursuant to the GRC decision is not unethical behavior. 171 N.J.L.J. 1216 GOVERNMENT — Jurisdiction — Public Contracts D.J. Miller & Associates, Inc. v. State of New Jersey, Department of the Treasury, Division of Purchase and Property , A-4910-01T3; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication December 23, 2002. Before Judges Skillman, Lefelt and Winkelstein. On appeal from Department of the Treasury, Division of Purchase and Property. DDS No. 21-2-2371 A state contracting agency cannot require in its contract that an action for breach of contract under the Contractual Liability Act must be brought in the Appellate Division rather than in the appropriate trial court, and appellant’s claim for breach of contract is transferred to the trial court. 171 N.J.L.J. 53 GOVERNMENT — Back Pay — Burdens — Civil Service O’Lone v. Dept. of Human Services , A-4741-00T5; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication January 28, 2003. Before Judges Skillman, Lefelt and Winkelstein. On appeal from Merit System Board. DDS No. 33-2-2666 Here, where the penalty for appellant’s misconduct was reduced on appeal from removal from State service to a suspension, and the Merit System Board denied his back-pay claim (for the time he was still separated from service after the period of suspension was over) solely on the ground that he had not attempted to obtain substitute employment during that time, without considering the availability of such employment, the case is remanded to the Board to make findings of fact concerning the availability of suitable substitute employment and to reconsider its decision in light of the principles set forth in this opinion. In the absence of an administrative rule that sets forth the evidentiary burdens where an appointing authority claims that a back-pay award should be denied or reduced due to a reinstated employee’s failure to have sought substitute employment, the appointing authority should bear the initial burden of presenting evidence of the employee’s failure to mitigate, in conformity with the general rule governing that defense; however, where the reason for the employee’s separation from service, as in this case, is his own misconduct rather than the appointing authority’s wrongful act (thus distinguishing it from the LAD claim in Goodman), if the appointing authority shows either that the employee failed to seek any substitute employment or that suitable substitute employment was available, the burden then shifts to the employee to present evidence that it was not available or could not have been obtained despite diligent efforts; if the Board then determines that there was suitable substitute employment the employee could have obtained with a diligent search, the back-pay award should be reduced by the amount the employee could have earned in that employment; it is appropriate to apply the “lowered sights” doctrine more expansively in a case such as this than in a case where a termination of employment violated the law. The Merit System Board may not impose on a public employee an obligation to deceive or mislead a prospective employer as a condition of obtaining back pay, after a reduction in a period of suspension, without subtracting what the employee could have earned from substitute employment during the period of separation from public service. 171 N.J.L.J. 486 GOVERNMENT — Boards of Education — Counties Board of Chosen Freeholders of the County of Hudson v. County Executive of the County of Hudson et al , A-1855-02T1; opinion by Wefing, J.A.D.; decided and approved for publication February 3, 2003. Before Judges King, Wefing and Fuentes. On appeal from the Law Division, Hudson County, L-6952-02. [Sat below: Judge D'Italia.] DDS No. 21-2-2711 Pursuant to N.J.S.A. 18A:54-16, county executives in counties of the first class that have adopted a form of governance under the Optional County Charter Law and have, by ordinance, increased the number of members of boards of education of county vocational schools to seven, are not required to seek the advice and consent of the board of chosen freeholders prior to making appointments to such boards, and the trial court erred in concluding otherwise; moreover, a county board of education is not a county board, commission or authority, and thus it falls wholly beyond the purview of N.J.S.A. 40:41A-37; the two appointments made without such advice and consent in this case are reinstated. 171 N.J.L.J. 542 GOVERNMENT — Civil Rights — State-Created Danger Gonzales et al v. City of Camden et al , A-56-01T1; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication February 6, 2003. Before Judges Skillman, Lefelt and Winkelstein. On appeal from the Law Division, Camden County, No. 6481-99. [Sat below: Judge Little.] DDS No. 46-2-2752 Where plaintiffs claim that local officials insisted on inspecting their store in a high-crime neighborhood after its normal closing hour and refused to accompany them to their car after the inspection, and they were subsequently shot, there is no basis on which to impose liability on the city and its officials under the state-created danger doctrine under which state and local officials who create a danger of harm by private actors, which otherwise would not have existed, may be held liable for a violation of the substantive due process rights of the injured party; the dismissal of plaintiffs’ 42 U.S.C. § 1983 action is affirmed. 171 N.J.L.J. 652 GOVERNMENT — Double Jeopardy — Pensions — Preemption Debell v. Board of Trustees, Public Employees’ Retirement System , A-1012-01T1; Appellate Division; opinion by Parker, J.A.D.; decided and approved for publication February 13, 2003. Before Judges Petrella, Lintner and Parker. On appeal from the Board of Trustees of the Public Employees Retirement System, No. 2-10-149632. DDS No. 33-2-2828 N.J.S.A. 43:1-3, New Jersey’s public-employees’ pension-forfeiture statute, does not violate the double-jeopardy provision of the New Jersey Constitution and here, where petitioner pleaded guilty to theft by deception after participating in a scheme to submit false claims to her health insurer, the State Health Benefits Program, the partial forfeiture of her pension did not constitute double jeopardy; 26 U.S.C.A. § 411(e)(2) is not applicable to a public employee whose employment is terminated as a direct result of her conviction of a crime related to her employment and N.J.S.A. 43:1-3 is exempt from the vesting requirements of the Internal Revenue Code and Employee Retirement Security Act, unless the plan (not the employee) is terminated by the State, and is not preempted by federal law. 171 N.J.L.J. 731 GOVERNMENT — Prosecutors — Public Records — Right to Know Courier News v. Hunterdon County Prosecutor’s Office , A-3353-02T2; Appellate Division; opinion by Fuentes, J.A.D.; decided and approved for publication March 19, 2003. Before Judges King, Lisa and Fuentes. On appeal from the Law Division, Hunterdon County, L-736-02. [Sat below: Judge Bernhard.] DDS No. 52-2-3169 The Law Division judge failed to apply the procedural mechanism outlined in the Open Public Records Act (OPRA) to plaintiff-newspaper’s request for access to the tape of a 911 call, from the home of one who was subsequently indicted for aggravated manslaughter, which is now in the custody of defendant-county prosecutor’s office; although those procedural errors deprived plaintiff of its right to a summary adjudication of its OPRA application, all of the legal issues (which have to do with defendant’s arguments concerning the pending trial and do not involve a caller’s reasonable expectation of privacy) have been fully briefed, and the Appellate Division’s original jurisdiction is invoked to decide the case and thereby vindicate the important public policy in OPRA that “government records shall be readily accessible” and that any limitations on the right accorded by OPRA shall be construed in favor of the public’s right of access; defendant is ordered to immediately provide plaintiff with a copy of the sound recording of the 911 call. 171 N.J.L.J. 1218 GOVERNMENT — Public Contracts R.C.G. Construction Company, Inc. v. Mayor and Council of the Borough of Keyport et al , A-100 September Term 2001; Supreme Court; per curiam opinion; decided January 6, 2003. On appeal from the Appellate Division, 346 N.J. Super. 58 (App. Div. 2001). [Sat below: Judge Havey, Braithwaite and Coburn; Judge Lawson in the Law Division.] DDS No. 30-1-2469 The decision of the Appellate Division, holding that, under N.J.S.A. 34:11-56.51 of the Public Works Contractor Registration Act, a subcontractor is required to register before it begins performing work on a project rather than before the general contractor submits its bid proposal, and reversing the order of the trial court, which had vacated the contract award on the ground that one of the subcontractors was not registered at the time the general contractor submitted its bid proposal, is affirmed. 171 N.J.L.J. 128 GOVERNMENT — Right to Know — Unclaimed Property Williamson v. Treasurer, State of New Jersey , A-2355-01T5; Appellate Division; opinion by Petrella, P.J.A.D.; decided and approved for publication February 4, 2003. Before Judges Petrella, Braithwaite and Lintner. On appeal from the Law Division, Mercer County, L-2423-01. [Sat below: Judge Feinberg.] DDS No. 52-2-2735 Under the version of the Uniform Unclaimed Property Act considered by the trial judge, which required the Office of the Administrator of Unclaimed Property (OAUP) in the Department of the Treasury to record the amounts due on unclaimed insurance and annuity contracts, the trial judge correctly determined that this information must be made available for public inspection under the Right to Know Law, and summary judgment in favor of plaintiff is affirmed; additionally, although the Right to Know Law and Uniform Unclaimed Property Act were amended in 2002, and the Act no longer specifies that these amounts must be recorded, the OAUP’s recording requirements remain the same, and the public is entitled to obtain nonpersonal information, such as the amounts of the unclaimed policies and annuities; furthermore, any amendments to the Unclaimed Property Act are not retroactive. 171 N.J.L.J. 555 GRAVES ACT (see CRIMINAL PRACTICE) GUN MANUFACTURERS (see CIVIL PRACTICE) HARASSMENT (see CRIMINAL PRACTICE) HEALTH (see ALTERNATIVE DISPUTE RESOLUTION) HEARINGS (see FAMILY LAW) HEARSAY (see CRIMINAL PRACTICE) HORSE RACING (see ADMINISTRATIVE LAW) HOSPITALS (see INSURANCE LAW) HOSTILE WORK ENVIRONMENT (see CIVIL RIGHTS) IMMUNITY (see CIVIL RIGHTS, TORTS) INDEMNIFICATION (see TORTS) INDISPENSABLE PARTIES (see REAL PROPERTY) INFERENCES (see TORTS) INFORMANTS (see CRIMINAL PRACTICE) INITIAL-PERMISSION RULE (see INSURANCE LAW) INSURANCE LAW (see also ADMINISTRATIVE LAW) INSURANCE LAW — Agents/Brokers — Hospitals — Medical Malpractice President v. Jenkins et al , A-1790-01T5 and A-1824-01T5; Appellate Division; opinion by Parrillo, J.A.D.; partial dissent by Landau, J.A.D. (retired and temporarily assigned on recall); decided and approved for publication February 6, 2003. Before Judges Newman, Parrillo and Landau. On appeal from the Law Division, Union County, UNN-L-4828-99. [Sat below: Judge Weiss.] DDS No. 23-2-2759 Where defendant-physician failed to make the premium payments for his “occurrence” malpractice policy, which was effective to February 1, 1998, and he was notified by the insurer that unless he paid the premiums his policy would be canceled, and prior to February 1 he obtained a “claims-made” policy which stated that during the first year of coverage the policy was not retroactive for incidents which occurred prior to February 1, and he received notice that the “occurrence” policy was being canceled effective October 26, 1997, and the alleged malpractice occurred in January 1998, when defendant was thus without coverage, there is no reason not to enforce the nonretroactive provision of the policy; although normally a claims-made policy provides retroactive coverage as long as the claim is made during the policy period (while an occurrence policy provides prospective coverage for events that occur during the policy period, regardless of when the claim is made), defendant requested the effective date, specifically understood the policy language, and the gap in insurance coverage was the result of his own actions. Defendant-physician’s predecessor insurer had no duty to advise the hospital of the cancellation of the physician’s insurance, and the insurance broker who obtained the claims-made policy did not breach a professional duty of care in failing to bridge the gap; furthermore, while hospitals may have the right to impose insurance conditions on physicians with admitting privileges, such a right does not give rise to a corresponding duty on the part of hospitals to monitor and enforce a physician’s compliance for the benefit of patients; summary judgment in favor of both insurers and the broker, as well as the denial of plaintiff’s motion to amend her complaint to assert a claim against the hospital for negligence in failing to enforce its malpractice insurance policy requirements, is affirmed. 171 N.J.L.J. 653 INSURANCE LAW — Auto Dealers — Employee Dishonesty Auto Lenders Acceptance Corp. v. Gentilini Ford, Inc., et al , A-2258-01T5; Appellate Division; opinion by Fuentes, J.A.D.; partial dissent by Wecker, J.A.D.; decided and approved for publication March 5, 2003. Before Judges Wefing, Wecker and Fuentes. On appeal from the Law Division, Cape May County, L-430-98. [Sat below: Judge Visalli.] DDS No. 23-2-2992 In this third-party action brought by the insured, an auto dealership, seeking indemnification from its insurers for settling a lawsuit brought against it by its commercial lender after one of its employees fraudulently induced the lender to finance car purchases by high-risk customers, the Law Division judge erred in construing the employee-dishonesty extension of the property-insurance section of the dealer’s policy as providing it indemnity coverage; employee-dishonesty policies do not protect employers against liability for tortious acts against third parties by their employees, and the policy language unambiguously describes the coverage as limited to direct loss from an act of dishonesty by an employee with the manifest intent to cause loss or damage to the insured (i.e., embezzlement, theft or destruction of business property), and payment by the insured to settle a third-party claim does not constitute a direct loss triggering coverage; the proximate-cause analysis in Appleman’s Rule is rejected. 171 N.J.L.J. 1013 INSURANCE LAW — Auto Insurance — Certifications of Permanency — Verbal Threshold Tierra v. Salazar , A-2836-01T5; Appellate Division; opinion by Stern, P.J.A.D.; decided and approved for publication January 6, 2003. Before Judges Stern, Collester and Alley. On appeal from the Law Division, Hudson County, L-1008-01. [Sat below: Judge Kracov.] DDS No. 23-2-2467 The trial court’s dismissal of this action for failure to satisfy the verbal threshold is affirmed substantially for the reasons expressed below; although the issue was not raised or briefed below, it is noted that the physician’s report submitted by plaintiff, which purported to certify the existence of a permanent injury, should not have been treated as a certification since it did not contain the required language — when a certification is not in proper form, the complaint should not be dismissed before plaintiff is given a reasonable opportunity to cure the defect. 171 N.J.L.J. 128 INSURANCE LAW — Auto Insurance — Limitations on Actions Everett v. State Farm Indemnity Company , A-114 September Term 2001; Supreme Court; per curiam opinion; dissent by Long, J.; decided March 6, 2003. On appeal from the Appellate Division. [Sat below: Judges Cuff, Winkelstein, and C.S. Fisher in the Appellate Division; Judge Fratto in the Law Division.] DDS No. 23-1-3013 The judgment of the Appellate Division, that the Law Division erred in dismissing plaintiff’s complaint seeking personal injury protection benefits from defendant, his insurer, for injuries arising out of an auto accident, on the ground that it was untimely, is affirmed for the reasons expressed below: here, where plaintiff timely submitted a bill for a heating pad that was prescribed by his treating physician, and defendant adjusted the bill to the fee schedule and then applied the balance to plaintiff’s deductible, the process of adjusting the bill and applying the balance to the deductible constituted a “last payment of benefits” under N.J.S.A. 39:6A-13.1, making plaintiff’s complaint, which was filed within two years of that date, timely; the statute, construed liberally in the context of the No-Fault Insurance Act and after giving due consideration to the Act’s underlying purposes, does not require that a benefit be actually paid to the insured or to a health-care provider, and plaintiff received an indirect monetary benefit because his deductible was reduced. 171 N.J.L.J. 1140 INSURANCE LAW — Auto Insurance — Misrepresentations — PIP Benefits Palisades Safety & Insurance Association v. Bastien et al , A-119 September Term 2001; Supreme Court; opinion by LaVecchia, J.; decided January 29, 2003. On certification to the Appellate Division, 344 N.J. Super. 319 (App. Div. 2001). [Sat below: Judges Skillman, Carchman and Wells in the Appellate Division; Judge DeBello in the Law Division.] DDS No. 23-1-2674 The named insured’s false representation to plaintiff-insurer that he was single and the only person of driving age in his household was a material misrepresentation, and plaintiff is entitled to an order declaring the policy void; the insured’s wife, a resident of his household with a driver’s license from another state, who was injured while driving one of the insured cars (and who presumably was innocent of her spouse’s intentional misrepresentations), is not entitled to be treated as an innocent third-party claimant entitled to minimum PIP benefits — her status is properly that of an additional named insured entitled to first-party PIP coverage when available under the household’s policy, and she was properly denied PIP benefits under the policy declared to be void ab initio. 171 N.J.L.J. 483 INSURANCE LAW — Auto Insurance — Notification — Reimbursement Benefits Edwards v. Prudential Property and Casualty Company et al, etc. , A-0590-01T5 and A-2712-01T3; Appellate Division; opinion by Havey, P.J.A.D.; decided and approved for publication January 21, 2003. Before Judges Havey, Wells and Payne. On appeal from the Law Division, Camden County, L-182-01 and L-2988-01. [Sat below: Judges Mariano and Fratto.] DDS No. 23-2-2588 Defendant insurance companies do not have an affirmative duty to alert their insureds to their right to reimbursement under the compensation provisions in their policies when the expenses are incurred, or to provide them with claim forms in order to facilitate their reimbursement claims, after they have supplied the insureds with a copy of their policies, particularly where, as here, there is no claim of fraud or misrepresentation and the compensation provisions are not ambiguous; defendants’ failure to alert plaintiff-insureds to their reimbursement benefits was not a breach of an implied covenant of good faith and fair dealing, and plaintiffs’ breach-of-contract claim is legally deficient since the duty to pay under the compensation provisions presupposes a request for payment and they have not made any claim for reimbursement; the trial court correctly granted defendants’ motion to dismiss. 171 N.J.L.J. 306 INSURANCE LAW — Auto Insurance — PIP Benefits — Police — Workers’ Compensation New Jersey Manufacturers Insurance Company v. Hardy et al , A-1214-01T5; Appellate Division; opinion by Wefing, J.A.D.; dissent by Lisa, J.A.D.; decided and approved for publication January 17, 2003. Before Judges King, Wefing and Lisa. On appeal from the Law Division, Union County, UNN-L-3838-01. [Sat below: Judge Anzaldi.] DDS No. 23-2-2572 The trial court erred in holding that defendant police officer, injured when the police cruiser in which he was patrolling was struck in the rear by an intoxicated driver, was entitled to personal injury protection benefits under the auto insurance policy issued to his father, with whom he lived; the police cruiser, which presumably had been modified to make it suitable for the hazards it routinely encountered, was not an automobile under N.J.S.A. 39:6A-2 because it was not a “private passenger automobile,” and there is no logical or policy reason why the officer should be able to transfer the cost of his work-related injuries to plaintiff-insurer, since the underlying purpose of PIP coverage (to ensure the prompt payment of benefits without the need for lengthy and costly litigation) is achieved by the workers’ compensation benefits available to him. 171 N.J.L.J. 302 INSURANCE LAW — Auto Insurance — Substantial Compliance — Verbal Threshold Casinelli v. Manglapus , A-4960-01T2; Appellate Division; opinion by Fall, J.A.D.; decided and approved for publication February 7, 2003. Before Judges Kestin, Eichen and Fall. On appeal from the Law Division, Union County, UNN-L-3109-01. DDS No. 23-2-2774 Where, as here, a plaintiff in an automobile personal injury action has failed to file the physician certification required to pass the verbal threshold within the time prescribed by N.J.S.A. 39:6A-8(a) and the two-year statute of limitations period has run when the defendant moves to dismiss, a substantial-compliance analysis is not precluded (Konopka v. Foster is disagreed with); if the plaintiff has filed a physician certification that, except for being untimely, meets the requirements of the Automobile Insurance Cost Reduction Act, the harsh consequences that would flow from a dismissal with prejudice where the statute of limitations has run can be equitably avoided; the denial of defendant’s motion for summary judgment is affirmed — on remand, the focus of the substantial-compliance analysis should be on whether plaintiff’s actions furthered the overall underlying legislative purposes in the same manner that the timely filing of the physician certification would have done. 171 N.J.L.J. 636 INSURANCE LAW — Auto Insurance — UM/UIM Coverage — Workers’ Compensation Mule v. New Jersey Manufacturers Ins. Co. , A-0930-01T5; Appellate Division; opinion by Fuentes, J.A.D.; decided and approved for publication January 6, 2003. Before Judges King, Wecker and Fuentes. On appeal from the Law Division, Mercer County, L-1856-00. [Sat below: Judge Sapp-Peterson.] DDS No. 39-2-2473 Here, where plaintiff was involved, during his workday, in an auto accident in his employer’s parking lot with an uninsured co-employee who had returned to the facility several hours after the end of his workday to use the shower at the employer’s gymnasium facilities, the Law Division correctly determined that N.J.S.A. 34:15-8 of the Workers’ Compensation Act does not preclude plaintiff from seeking uninsured-motorist benefits in connection with the accident, since the critical question is whether both employees were in the course of their employment at the time, and the co-employee’s presence at the scene was unrelated to his employment. 171 N.J.L.J. 118 INSURANCE LAW — Auto Insurance — Verbal Threshold Ostasz v. Howard et al , A-3542-01T1; Appellate Division; opinion by Kestin, J.A.D.; decided and approved for publication January 21, 2003. Before Judges Kestin, Fall and Weissbard. On appeal from the Law Division, Civil Part, Atlantic County, L-3901-00. [Sat below: Judge Todd.] DDS No. 23-2-2589 Nothing in the language or history of the Automobile Insurance Cost Reduction Act of 1998 (AICRA) suggests a legislative aim to modify the proof requirements for a verbal- threshold case, and the requirements of Polk v. Daconceicao continue to govern verbal-threshold cases under AICRA; the trial court correctly dismissed the complaint here, since plaintiff did not provide the required comparative analysis of pre-existing injuries and those sustained in the auto accident that gave rise to this lawsuit. 171 N.J.L.J. 318 INSURANCE LAW — Auto Theft — Initial-Permission Rule Jaquez v. National Continental Insurance Company , A-1703-01T2; Appellate Division; opinion by Coburn, J.A.D.; decided and approved for publication December 30, 2002. Before Judges Stern, Coburn and Alley. On appeal from the Law Division, Essex County, L-6-2000. [Sat below: Judge Winard.] DDS No. 23-2-2427 Where the tortfeasor asked defendant-automobile owner for a cigarette and defendant told him that they were in his car and gave him the keys, and the tortfeasor took the car and was involved in an accident, the trial court’s determination that there was no insurance coverage under the initial-permission rule because the tortfeasor had not been given permission to drive defendant’s car is reversed; there is no evidence that the tortfeasor intended to even temporarily withhold the car from defendant. 171 N.J.L.J. 56 INSURANCE LAW — PIP Rojas v. DePaolo , ATL-L-1022-01; Law Division, Atlantic County; opinion by Perskie, J.S.C.; decided August 30, 2002; approved for publication December 20, 2002. DDS No. 23-3-2396 N.J.S.A. 39:6A-4.5(a), which precludes a cause of action brought by a claimant who fails to maintain medical benefits coverage, does not apply to an uninsured, nonresident and, therefore, defendant’s motion to dismiss the complaint of plaintiff, a resident of Pennsylvania, is denied. 171 N.J.L.J. 57 Negron Colonial v. Penn Insurance, A-4694-01T5; Appellate Division; opinion by Landau, J.A.D., retired and temporarily assigned on recall; decided and approved for publication March 6, 2003. Before Judges Eichen, Weissbard and Landau. On appeal from the Law Division, Cumberland County, CUM-L-259-01. [Sat below: Judge Curio.] DDS No. 23-2-3012 Where plaintiff was a passenger and left the car to help the driver, who was assaulted by a person who was preventing the car from leaving the parking lot, the trial judge’s finding that his actions were not sufficiently “entwined with normal use” of a vehicle, thereby granting summary judgment to defendant on plaintiff’s claim for personal-injury-protection benefits, is affirmed; there is nothing to support the factual contention made on appeal that plaintiff left the car to clear a path or assess damage to the vehicle. 171 N.J.L.J. 996 INSURANCE LAW — Settlements — UM/UIM Coverage Ohio Casualty Insurance Company v. Bornstein , A-2870-01T5; Appellate Division; opinion by Axelrad, J.T.C. (temporarily assigned); decided and approved for publication February 6, 2003. Before Judges Wallace, Axelrad and Hoens. On appeal from the Law Division, Burlington County, L-2365-01. [Sat below: Judge Covie-Leese.] DDS No. 23-2-2761 Although an insured does not have an unfettered right to settle a suit for a modest or insignificant sum and then pursue a UIM claim, the trial court in this declaratory-judgment action correctly concluded that defendant- insured’s reasons for accepting a settlement offer of 60% of the tortfeasor’s policy limit were reasonable and that plaintiff-insured was not prejudiced by it; defendant had informed plaintiff of his lawsuit resulting from injuries he sustained when the taxi he was a passenger in rear-ended a car, and later followed the requirements of his policy and Longworth by advising plaintiff of the settlement offer, and, even though the policy does not condition payment of UIM benefits on the insured’s exhaustion of the limits of a tortfeasor’s liability policy, he offered to credit plaintiff with the full coverage available under that policy, consistent with Longworth‘s interpretation of N.J.S.A. 17:28-1.1; the order that plaintiff provide UIM coverage for defendant’s damages in excess of the tortfeasor’s policy limits is affirmed. 171 N.J.L.J. 656 INSURANCE LAW — Standing Strulowitz et al v. Provident Life and Casualty Insurance Company et al , A-667-01T5; Appellate Division; opinion by Ciancia, J.A.D.; decided and approved for publication February 10, 2003. Before Judges Pressler, Ciancia and Hoens. On appeal from the Law Division, Morris County, MRS-L-2522-99. [Sat below: Judge Langlois.] DDS No. 23-2-2795 Plaintiff, although not designated as the owner or payee of the business buy-out policy, had sought the policy, paid for it, was the insured under it, and would be the ultimate recipient of its funds after they passed through the designated payee’s hands, and the trial court erred in concluding that plaintiff did not have standing to sue — he is a real party in interest who should be allowed to litigate his claim against defendant-insurer pursuant to R. 4:26-1; alternatively, he has a claim as a third-party beneficiary of the agreement — although not every incidental benefit flowing from a contract will be sufficient to render a person a third-party beneficiary, the benefit to this plaintiff is well beyond incidental, and it was clearly foreseeable that he would be damaged if defendant-insurer did not carry out its duty of good faith and fair dealing. 171 N.J.L.J. 748 INSURANCE LAW — Verbal Threshold Thomasson v. McQuown , ATL-L-3630-00; Law Division, Atlantic County; opinion by Perskie, J.S.C.; decided July 29, 2002; approved for publication January 31, 2003. DDS No. 23-3-2805 The requirement for providing a physician’s certification for noneconomic losses, pursuant to N.J.S.A. 39:6A-8(a), applies to any of the injuries listed and not only to permanent injuries; although plaintiff failed to provide a certification for her claim of significant disfigurement or scarring, the complaint will not be dismissed since plaintiff has provided all discovery and, thus, there is no prejudice to defendant, the injuries were serious and, regardless of a dismissal, there will still be a trial for plaintiff’s economic losses. 171 N.J.L.J. 561 INTELLECTUAL PROPERTY — Trade-Name Infringement American Home Mortgage Corporation v. American Home Mortgage Corporation , A-6339-00T5; Appellate Division; opinion by Hoens, J.A.D.; decided and approved for publication February 6, 2003. Before Judges Wallace, Axelrad and Hoens. On appeal from the Chancery Division, Burlington County, C-118-99. [Sat below: Judge Gottlieb.] DDS No. 53-2-2762 Although the name used by defendant is identical to plaintiff’s name, and the character of the two businesses is the same, because their mode of business acquisition and marketing is different, their geographic areas of concentration are different, and there is no evidence that defendant adopted the name in an effort to take advantage of plaintiff’s good name or business reputation, or that the purely descriptive name plaintiff chose for its business has in any sense become associated with its particular product or service, summary judgment on plaintiff’s claim of trade-name infringement is affirmed; however, defendant is required to use its complete authorized name “American Home Mortgage Corp. of New York” for all purposes in New Jersey. 171 N.J.L.J. 652 INTENTIONAL TORTS (see TORTS) INTERNET (see CRIMINAL PRACTICE) INVERSE CONDEMNATION (see REAL PROPERTY) INVESTIGATIVE DETENTIONS (see CRIMINAL PRACTICE) JOYRIDING (see CRIMINAL PRACTICE) JUDGES (see CRIMINAL PRACTICE, EVIDENCE) JURIES (see CRIMINAL PRACTICE) JURISDICTION (see APPEALS, CIVIL PRACTICE, FAMILY LAW, GOVERNMENT, PUBLIC UTILITIES, WORKERS’ COMPENSATION) JURY INSTRUCTIONS (see CRIMINAL PRACTICE) JUVENILES (see CRIMINAL PRACTICE) LAND USE AND PLANNING — Affordable Housing — Builders’ Remedy Mount Olive Complex et al v. Township of Mount Olive et al , A-3728-98T2; Appellate Division; opinion by Havey, P.J.A.D.; decided and approved for publication January 10, 2003. Before Judges Havey, Cuff and Lisa. On appeal from the Law Division, Morris County, L-3301-95, and on remand from the Supreme Court. [Sat below: Judge Stanton.] DDS No. 26-2-2517 In this action, remanded by the Supreme Court for reconsideration in light of Toll Bros., Inc. v. Township of West Windsor, the prior affirmance of the trial court’s denial of a builder’s remedy here will not be disturbed; while the “race to the finish line” between the township, seeking approval from the Council on Affordable Housing, and plaintiff, filing this action for a builder’s remedy, was caused by the township’s lack of diligence in preparing and filing with COAH its housing element and fair-share plan in a timely fashion, the fact is that plaintiff has not demonstrated that the township’s land-use regulations failed to provide the requisite realistic opportunity for satisfaction of the township’s fair-share obligation. 171 N.J.L.J. 198 LAND USE and PLANNING — Appeals — Standing — Telecommunications The Spinnaker Condominium Corporation v. Zoning Board of the City of Sea Isle City , A-6289-00T3; Appellate Division; opinion by Havey, P.J.A.D.; decided and approved for publication January 23, 2003. Before Judges Havey, Wells and Payne. On appeal from the Law Division, Cape May County, L-785-99. [Sat below: Judge Visalli.] DDS No. 26-2-2624 Plaintiff, a condominium association that leased space on its roof to a wireless-telecommunications provider for antennae and related equipment, does not have standing to appeal from defendant-zoning board’s denial of a conditional-use variance to construct the facility since it has not suffered a “substantial likelihood of some harm” as a result; plaintiff is not a telecommunications provider, so the board’s decision does not intrude on any statutory right to install or operate the antennae on its own, and it has no financial interest in the outcome of this litigation since the provider presumably terminated the lease upon the denial; further, a conditional-use variance permitting the proposed antennae would not adhere to the land in the traditional zoning sense, since any other provider that might lease appellant’s space would do so because of its own needs, so that, without this provider, the denied application lacks technical relevance. 171 N.J.L.J. 464 LAND USE and PLANNING — Mixed Uses — Variances Conselice v. Borough of Seaside Park et al , A-3058-01T2; Appellate Division; opinion by Carchman, J.A.D.; decided and approved for publication March 18, 2003. Before Judges Conley, Newman and Carchman. On appeal from the Law Division, Ocean County, L-2415-01. [Sat below: Judge Clyne.] DDS No. 26-2-3152 Here, where plaintiff-applicant’s home also contained a real estate office, which was a lawful pre-existing nonconforming use in the residential zone, and portions of the structure were used by both the residence and the business, the use was a pre-existing nonconforming integrated mixed use, and plaintiff’s proposed expansion of the residential use is not only an expansion of that discrete use but an expansion of the mixed use of the property, and the trial judge correctly held that his proposed expansion requires a use variance pursuant to N.J.S.A. 40:55D-70(d). 171 N.J.L.J. 1224 LANDLORD/TENANT (see ATTORNEYS’ FEES, REAL PROPERTY) LEASE TERMINATION (see REAL PROPERTY) LEASES (see TAXATION) LEGAL IRREGULARITY (see CRIMINAL PRACTICE) LEGAL MALPRACTICE (see ATTORNEYS’ FEES) LEGAL PROFESSION — Conflicts of Interest In the Interest of S.G. , A-107 September Term 2001; Supreme Court; opinion by LaVecchia, J.; decided January 27, 2003. On appeal from the Appellate Division, 348 N.J. Super. 77 (App. Div. 2002). [Sat below: Judges Fall, Axelrad and Newman in the Appellate Division.] DDS No. 04-1-2640 Where one of the law firm’s clients was the victim of a shooting and survived for seven days, and during that time the firm was retained by defendant, who was charged in that shooting, to represent him, the interests of the two clients during this period of dual representation were adverse, resulting in a prohibited actual conflict, and therefore, the firm may not proceed with the defense, notwithstanding defendant’s consent; a deceased client continues to have interests that are entitled to the protection of the attorney-client relationship until the representation is terminated consistent with professional and procedural rules. 171 N.J.L.J. 476 LEGAL PROFESSION — Conflicts of Interest — Criminal Practice — Dual Representation State v. Jimenez , A-115 September Term 2001; Supreme Court; opinion by Albin, J.; dissent by Long, J.; decided February 27, 2003. On appeal from the Law Division, Morris County. [Sat below: Judge Bozonelis.] DDS No. 14-1-2944 In this capital case, where one of two public defenders assigned to represent defendant had also represented for one day an individual who was questioned during the investigation of the murder with which defendant is charged, the facts do not present an actual conflict of interest or an appearance of impropriety in her serving as defendant’s co-counsel, and there is no reasonable basis to deny defendant counsel of his choice; both the State and the defense have attested that there is no reason to believe, or evidence to support, that her former client was involved in the murder, both have abjured any intention of calling him as a witness, there is no suggestion that she learned anything in her representation of him (when he pleaded guilty to harassment after making threats against the person who was responsible for the police questioning him), that would benefit defendant, and, since no ordinary knowledgeable citizen acquainted with the facts would have a reasonable basis to believe that there is a plausible third-party guilt case, counsel’s remaining in this case will not disserve the interests of defendant, her former client, or the public. Although the rationale of this decision does not require consent under the Rules of Professional Conduct, given the interests at stake in this capital case, prudence dictates that the judge should conduct a colloquy on the record to determine that defendant knows the full circumstances of his co-counsel’s prior representation — he should be told that several witnesses identified her former client as having worn the sweater that the State will argue he abandoned after the murder, that the former client pleaded guilty to harassment after threatening the person who caused him to be questioned by the police, and that the defense does not intend to pursue a defense of third-party guilt and the reasons therefore — and he may then voluntarily consent to have counsel continue to represent him. 171 N.J.L.J. 898 LESSER-INCLUDED OFFENSES (see CRIMINAL PRACTICE) LIMITATIONS OF ACTIONS (see CRIMINAL PRACTICE, INSURANCE LAW, TORTS) LIQUOR LICENSES (see REAL PROPERTY) MECHANICS’ LIENS (see CIVIL PRACTICE) MEDICAL MALPRACTICE (see CIVIL PRACTICE, INSURANCE LAW, TORTS) MENTAL STATES (see CRIMINAL PRACTICE) MISREPRESENTATIONS (see INSURANCE LAW) MIXED USES (see LAND USE and PLANNING) MORTGAGES (see COMMERCIAL LAW) MUNICIPAL JUDGES (see TORTS) MUNICIPAL LAND USE (see REAL PROPERTY) MUNICIPAL ORDINANCES (see CRIMINAL PRACTICE) MUNICIPALITIES (see CIVIL PRACTICE, CIVIL SERVICE, CONTRACTS, PUBLIC UTILITIES) MURDER (see CRIMINAL PRACTICE) NEGLIGENCE (see TORTS) NO EARLY RELEASE (see CRIMINAL PRACTICE) NO-KNOCK WARRANTS (see CRIMINAL PRACTICE) NONPAYMENT OF RENT (see REAL PROPERTY) NONPROFIT HOSPITALS (see TORTS) NONPROFIT ORGANIZATIONS (see TORTS) NOTICE (see CRIMINAL PRACTICE, FAMILY LAW, REAL PROPERTY) NOTIFICATION (see INSURANCE LAW) OCCUPATIONAL DISEASE (see WORKERS’ COMPENSATION) ORAL CONTRACTS (see REAL PROPERTY) PARENTAL IMMUNITY (see TORTS) PASSENGERS (see TORTS) PENSIONS (see GOVERNMENT) PER QUOD DAMAGES (see CIVIL RIGHTS) PEREMPTORY CHALLENGES (see CRIMINAL PRACTICE) PIP (see ADMINISTRATIVE LAW, ALTERNATIVE DISPUTE RESOLUTION, INSURANCE LAW) PIP BENEFITS (see INSURANCE LAW) PLEA AGREEMENTS (see CRIMINAL PRACTICE) PLEA BARGAINS (see CRIMINAL PRACTICE) POLICE (see EMPLOYMENT, INSURANCE LAW, TORTS) POLICE OFFICERS (see CIVIL SERVICE) POLYGRAPHS (see EVIDENCE) PORNOGRAPHY (see CRIMINAL PRACTICE) POST-CONVICTION RELIEF (see CRIMINAL PRACTICE) PREEMPTION (see CRIMINAL PRACTICE, GOVERNMENT) PREJUDGMENT INTEREST (see CIVIL RIGHTS, CONTRACTS) PRIOR BAD ACTS (see CRIMINAL PRACTICE) PRISONERS (see CONSTITUTIONAL LAW) PROBABLE CAUSE (see CIVIL RIGHTS) PROBATION (see CRIMINAL PRACTICE) PROSECUTOR’S OFFICE (see CIVIL RIGHTS) PROSECUTORS (see CRIMINAL PRACTICE, GOVERNMENT) PUBLIC CONTRACTS (see GOVERNMENT) PUBLIC FIGURES (see CIVIL PRACTICE) PUBLIC RECORDS (see GOVERNMENT) PUBLIC UTILITIES — Jurisdiction — Municipalities — Settlements — Water Borough of Haledon v. Borough of North Haledon et al , A-3196-01T3; Appellate Division; opinion by Petrella, P.J.A.D.; decided and approved for publication March 17, 2003. Before Judges Petrella, Braithwaite and Lintner. On appeal from the Chancery Division, Passaic County, C-89-01. [Sat below: Judge McVeigh.] DDS No. 37-2-3137 Where two municipalities entered into agreements in 1907 and 1917 with respect to providing water, and recently the receiving municipality entered into an Interlocal Services Agreement with a developer and another municipality for the supply of water, and the municipality originally supplying the water withdrew its objection to that agreement in exchange for $500,000 from the developer, the Board of Public Utilities did not have jurisdiction to decided if a franchise for the supply of water existed since there is no regulatory issue that involves the BPU’s statutory obligation to ensure that a utility provides safe, adequate, proper and environmentally sound service or that requires agency expertise; the interpretation of whether the 1907 and 1917 agreements granted an exclusive right to provide water was well within the province of the Chancery Judge; however, the court had no basis to vacate the settlement between the municipality originally supplying water and the developer since this was not a case where a municipality is seeking to extract money for off-tract improvements as a quid pro quo for approval of a development, but a claim for money damages based on the exclusivity of supplying water. 171 N.J.L.J. 1199 RADON (see REAL PROPERTY) REAL PROPERTY (see also TAXATION) REAL PROPERTY — Apparent Authority — Oral Contracts LoBiondo v. O’Callaghan , A-1317-01T2; Appellate Division; opinion by Wefing, J.A.D.; decided and approved for publication February 19, 2003. Before Judges Wefing, Wecker and Fuentes. On appeal from the Chancery Division, Monmouth County, MON-C-251-00. [Sat below: Judge Fisher.] DDS No. 34-2-2864 Where defendant and his wife owned their home jointly, and plaintiff alleged that he had an oral right of first refusal to purchase the home, although the trial court correctly noted that plaintiff was required to prove the existence of a right of first refusal by clear and convincing evidence, it erred in concluding that plaintiff was only required to prove the remaining aspects of his case by a preponderance of the evidence; since plaintiff’s evidence cannot meet the clear and convincing threshold, and the reasons given by the trial court to support its conclusion that the actions of defendant’s wife vested defendant with apparent authority to act on her behalf in his dealings with plaintiff are legally insufficient, the award of specific performance for plaintiff is reversed. 171 N.J.L.J. 752 REAL PROPERTY — Attorneys — Residential Real Estate Contracts — Three-Day Review Romano et al v. Chapman et al , A-3478-01T2; Appellate Division; opinion by Stern, J.A.D.; decided and approved for publication March 6, 2003. Before Judges Stern, Coburn and Collester. On appeal from the Chancery Division, Morris County, C-180-01. [Sat below: Judge MacKenzie.] DDS No. 34-2-3021 Although clients can instruct the attorney who is reviewing their real-estate contract to delay a decision or communication to the other party until the last possible moment of the three-day review period, in case a better offer comes along or the clients want to change their minds, they cannot approve an agreement through their attorney, as their agent, or send a change acceptable to the other party, and then change their minds because a better offer is received within the three days. 171 N.J.L.J. 992 REAL PROPERTY — Contracts — Radon Kotkin v. Aronson , A-4 September Term 2002; Supreme Court; per curiam opinion; decided February 26, 2003. On certification to the Appellate Division. [Sat below: Judges Braithwaite and Weissbard in the Appellate Division; Judge Higbee in the Law Division.] DDS No. 34-1-2931 Under the contract for the sale of defendants’ house, which was prepared by their real estate agent, the Appellate Division correctly affirmed the trial court’s ruling that the presence of radon gas was a basis for the intended buyers to terminate it; although defendants reduced the level to what they considered environmentally safe, they had not qualified the radon clause and, even if there were some ambiguity in the contract, it would be construed against them, as its preparers. Apparently, since it may be that almost all homes have some measurable level of radon gas, some pre-printed contracts for the sale of real property now specify the level of radon in a building that would trigger a buyer’s right to terminate, and all parties should include such specificity in their contracts to avoid future disputes. 171 N.J.L.J. 791 Kotkin v. Aronson, A-5066-00T3; Appellate Division; per curiam opinion; decided May 9, 2002; approved for publication February 26, 2003 [after Supreme Court affirmance]. Before Judges Braithwaite and Weissbard. On appeal from the Law Division, Atlantic County, L-3590-00. [Sat below: Judge Higbee.] DDS No. 34-2-0477 The motion judge correctly concluded, notwithstanding the sellers’ proffered evidence that the radon level had been remediated to an acceptable level, that, since the contract for the sale of their house did not refer to any specific level of radon but simply to the buyers’ right to terminate if an inspection revealed “the presence of radon gas,” the buyers were within their rights to terminate the contract [the Supreme Court has affirmed the Appellate Division's judgment in this case; see the digest of that opinion on page 49 of the March 3, 2003, issue of the New Jersey Law Journal, 171 N.J.L.J. 791]. 171 N.J.L.J. 1148 REAL PROPERTY — Easements — Indispensable Parties — Inverse Condemnation — Municipal Land Use — Subdivisions Fox v. Township of West Milford , A-2858-00T3; Appellate Division; opinion by Pressler, P.J.A.D.; decided and approved for publication January 22, 2003. Before Judges Pressler, Wallace and Axelrad. On appeal from the Law Division, Passaic County, PAS-L-7670-97. [Sat below: Judge Dumont.] DDS No. 26-2-2605 The trial court correctly determined that the 150-acre tract that plaintiffs had attempted to subdivide into 10 lots by deeding 10 separate parts of the tract to each other and their partnership, without benefit of municipal land-use applications and approvals, was in fact one unified parcel; defendant-municipality’s failure to bring an action under the Municipal Land Use Law to set aside the conveyances does not validate the subdivided lots for development purposes. Plaintiffs’ inverse-condemnation claim that the township’s ordinance vacating any public interest in the unimproved dirt roads running through their property to improved roadways left it landlocked and, consequently, deprived them of any reasonable use, is remanded because one of the roads, which runs over State-owned land, connected the unified parcel to an improved street and the State, which had not been joined as a party, was therefore an indispensable party to a determination of whether plaintiffs retained private rights in that road by way of easement, in which case they have not been deprived of such reasonable access as they had prior to the ordinance. 171 N.J.L.J. 319 REAL PROPERTY — Eminent Domain — Liquor Licenses The Bar on the Pier, Inc. v. Bassinder et al , A-1743-01T3; Appellate Division; opinion by Havey, P.J.A.D.; decided and approved for publication March 12, 2003. Before Judges Havey, Rodriguez and Wells. On appeal from the Law Division, Monmouth County, L-5966-99. [Sat below: Judge Chaiet.] DDS No. 11-2-3083 Where plaintiff sold its liquor license to defendant and the contract provided that once defendant sold his interest in the premises he was leasing the balance of the payment for the license would be due, and after the city instituted condemnation proceedings plaintiff failed to convince the court that he was the owner of the subject property by virtue of his 99-year lease, based on the intentions of the parties, that the balance would be due when defendant voluntarily divested himself of either the premises or the license, the condemnation of the premises did not constitute a “sale” by plaintiff; although the dismissal of the complaint for the balance due is affirmed, the trial court erred in relying on taxation cases for its holding that there was no sale. 171 N.J.L.J. 1146 REAL PROPERTY — Evictions — Landlord/Tenant Brunswick Street Associates v. Gerard et al , LT 32959-02; Law Division, Essex County, Special Civil Part; opinion by Fast, J.S.C.; decided October 31, 2002; approved for publication January 31, 2003. DDS No. 27-3-2806 Here, although defendant-tenants have substantially breached the terms of their lease by allowing unauthorized people to occupy the apartment with them, plaintiff-landlord’s eviction complaint must be dismissed without prejudice, since there were only five days between the notice to cease and the notice to quit; while the Legislature did not prescribe any specific period between those notices, there must be a reasonable time to allow the tenant to cure the breach, and five days is not a reasonable period for the unauthorized occupants to find and move into alternate housing, particularly since the occupancy was neither illegal nor hazardous and had been tolerated by the landlord for a year or more. 171 N.J.L.J. 557 REAL PROPERTY — Landlord/Tenant — Lease Termination — Nonpayment of Rent — Notice Riverview Towers Associates v. Jones, etc. , A-1474-01T5, A-1481-01T5; Appellate Division; opinion by Axelrad, J.T.C. (temporarily assigned); decided and approved for publication February 28, 2003. Before Judges Pressler, Wallace and Axelrad. On appeal from the Law Division, Camden County, LT-7413-01. [Sat below: Judge Supnick.] DDS No. 27-2-2958 The express language of 24 C.F.R. § 247.4(a) and (e) requires the issuance and service of a written termination notice in rent-nonpayment cases involving federally subsidized housing, as does the language of the leases involved here, and plaintiff-landlord’s failure to comply with those requirements prior to the initiation of the summary dispossess complaints deprived the court of jurisdiction (a complaint for summary dispossess is sufficient to confer jurisdiction on the court under New Jersey law but is not sufficient notice under federal law), and the judgments of possession previously issued are reversed and vacated. 171 N.J.L.J. 911 RECYCLING (see CONTRACTS) REDISTRICTING (see ELECTION LAW) REGULATORY STOPS (see CRIMINAL PRACTICE) REIMBURSEMENT BENEFITS (see INSURANCE LAW) REINSTATEMENT (see FAMILY LAW) RESIDENTIAL REAL ESTATE CONTRACTS (see REAL PROPERTY) RESISTING ARREST (see CRIMINAL PRACTICE) RESPONDEAT SUPERIOR (see TORTS) RIGHT TO COUNSEL (see CRIMINAL PRACTICE) RIGHT TO KNOW (see GOVERNMENT) SANCTIONS (see CIVIL PRACTICE) SATISFACTION CLAUSES (see EMPLOYMENT) SEARCH AND SEIZURE (see CIVIL RIGHTS, CRIMINAL PRACTICE) SELF-INCRIMINATION (see CONSTITUTIONAL LAW, CRIMINAL PRACTICE) SELF-DEFENSE (see CRIMINAL PRACTICE) SENTENCING (see CRIMINAL PRACTICE) SETTLEMENTS (see INSURANCE LAW, PUBLIC UTILITIES) SEX OFFENDERS (see CONSTITUTIONAL LAW, CRIMINAL PRACTICE) SEXUAL ASSAULT (see CRIMINAL PRACTICE) SEXUAL HARASSMENT (see CIVIL RIGHTS) SEXUALLY VIOLENT PREDATORS (see CRIMINAL PRACTICE) SIDEWALKS (see TORTS) SLEEPWALKING (see CRIMINAL PRACTICE) SLIP AND FALL (see TORTS) SPECIAL CIVIL PART (see CIVIL PRACTICE) SPOLIATION OF EVIDENCE (see TORTS) STALKING (see CRIMINAL PRACTICE) STANDING (see INSURANCE LAW, LAND USE and PLANNING) STATE CONSTITUTION (see CRIMINAL PRACTICE) STATE-CREATED DANGER (see GOVERNMENT) STOCK-OPTION PLANS (see BUSINESS LAW) STRICT LIABILITY (see TORTS) SUBDIVISIONS (see REAL PROPERTY) SUBSTANTIAL COMPLIANCE (see INSURANCE LAW) SUMMARY JUDGMENT (see CIVIL PRACTICE) SUPERMARKETS (see TORTS) SWIMMING POOLS (see TORTS) TAXATION — Corporations River Systems, Inc. v. State of New Jersey, Department of the Treasury, Division of Taxation, etc. , A-2741-01T3; Appellate Division; per curiam opinion; decided and approved for publication March 14, 2003. Before Judges Havey, Wells and Payne. On appeal from the Tax Court, 005627-1999, 005628-1999 and 005629-1999, whose opinion is reported at 19 N.J. Tax 599 (Tax 2001). [Sat below: Judge Small.] DDS No. 35-2-3126 The summary judgment in defendant’s favor that was granted by the Tax Court judge, who rejected plaintiffs’ argument that they maintain a regular place of business outside New Jersey and are thus entitled to use the business formula of N.J.S.A. 54:10A-6, is affirmed. 171 N.J.L.J. 1147 TAXATION — Exemptions — Leases — Real Property Center for Molecular Medicine and Immunology v. Belleville Township , A-5843-00T5; Appellate Division; opinion by Coburn, J.A.D.; decided and approved for publication January 17, 2003. Before Judges Coburn, Collester and Alley. On appeal from the Tax Court. [Sat below: Judge Kahn.] DDS No. 27-2-2576 Here, where the county had transferred the property that is the subject of this tax appeal to plaintiff, a nonprofit entity engaged in cancer research, for an initial term of 25 years with irrevocable options to extend the lease for three 30-year periods, after which the property would revert to the county, the Tax Court erred in relying on N.J.S.A. 54:4-3.3 in granting plaintiff’s claim to a tax exemption, asserted in response to defendant-municipality’s multimillion-dollar assessment on the property made against plaintiff (section 3.3 would be relevant only if defendant had attempted to tax the county) and in failing to address plaintiff’s exemption claim under N.J.S.A. 54:4-3.6; although the extensions clearly did not convert plaintiff’s interest into a fee simple absolute, as the lessee under a 115-year lease plaintiff should be considered an owner for purposes of section 3.6′s ownership requirement and entitled to a tax exemption under that section, if otherwise qualified under the statute, and the matter is reversed and remanded for resolution of the section 3.6 claim. 171 N.J.L.J. 306 TAXICABS (see CRIMINAL PRACTICE) TELECOMMUNICATIONS (see LAND USE and PLANNING) TERRORISTIC THREATS (see CRIMINAL PRACTICE) THEFT (see CRIMINAL PRACTICE) THREE-DAY REVIEW (see REAL PROPERTY) TORT CLAIMS ACT (see CIVIL RIGHTS, TORTS) TORTS (see TRANSPORTATION) TORTS — Affidavits of Merit — Medical Malpractice Balthazar v. Atlantic City Medical Center et al , A-5661-00T3; Appellate Division; opinion by Payne, J.A.D.; decided and approved March 5, 2003. Before Judges Havey, Rodriguez and Payne. On appeal from the Law Division, Atlantic County, L-4192-99. [Sat below: Judge Higbee.] DDS No. 29-2-3000 Where the first report prepared by the surgeon who performed plaintiff’s operation was misplaced and a second report, stating that it was a “redictation,” was prepared, and eventually the first report was found and placed in the hospital chart along with the second report but neither report contained any acknowledgment of the sutures that were left in plaintiff’s ureter or the alleged transection that formed the foundation for her malpractice action, there is no basis for plaintiff’s claim that the medical records are fraudulent, and the dismissal of her claim, for failure to comply with the affidavit of merit statute, is affirmed. 171 N.J.L.J. 1015 TORTS — Attorney Advertising — Defamation Dello Russo et al v. Nagel et al , A-3307-01T5; Appellate Division; opinion by Petrella, P.J.A.D.; decided and approved for publication March 12, 2003. Before Judges Petrella, Braithwaite and Lintner. On appeal from the Law Division, BER-L-9831-01. [Sat below: Judge Donohue.] DDS No. 36-2-3091 The term “bad,” used by defendant-attorneys in their newspaper advertisement seeking patients of plaintiff who had suffered “a bad result” was not significant because defendants were trying to limit the patients who contacted them to those who had experienced unfavorable results, and the trial judge properly concluded that defendants’ advertisement was not defamatory — the advertisement does not state that plaintiff is incompetent or that he has a history of bad results; also, the judge properly ruled that defendants’ threats during settlement negotiations to go public if plaintiff did not settle were protected by the litigation privilege; additionally, there is no civil cause of action for theft by extortion and that count of the complaint was properly dismissed. 171 N.J.L.J. 1144 TORTS — Attorneys — Auto Negligence — Municipal Judges — Vicarious Liability O’Toole v. Carr et al , A-105/106 September Term 2001; Supreme Court; per curiam opinion; decided February 19, 2003. On appeal from the Appellate Division, 345 N.J. Super. 559 (App. Div. 2001). [Sat below: Judges Conley, Lefelt and Lisa in the Appellate Division; Judge Feldman in the Law Division.] DDS No. 05-1-2857 Here, where the car of defendant-attorney, leased in his personal capacity and paid for from his corporate account, struck plaintiff while he was driving to the municipal court where he served as a part-time judge, the Appellate Division’s determination that the law firm’s excess policy was not available for the accident because his commute did not fall within any exception to the going-and-coming rule is affirmed for the reasons expressed below: the dual-purpose exception is not applicable since it would violate the Code of Judicial Conduct to say that defendant was serving any purpose of the law firm while commuting to his municipal judgeship, he was not on a special mission for the law firm, the firm’s practice did not require him to maintain his personal car for off-site firm business, and he was not on call. 171 N.J.L.J. 750 TORTS — Attorneys — Avoidable Consequences — Genetic Counseling — Medical Malpractice — Wrongful Birth Geler v. Akawie et al , A-4225-00T3; Appellate Division; opinion by Payne, J.A.D.; decided and approved for publication March 3, 2003. Before Judges Havey, Wells and Payne. On appeal from the Law Division, Middlesex County, L-8318-98. [Sat below: Judge Garruto.] DDS No. 40-2-2974 In this action alleging medical malpractice based on defendant-obstetricians’ allegedly inadequate genetic counseling and failure to follow up once it was apparent that initial genetic testing for Tay-Sachs disease had not been conducted, the trial judge erred in applying the elevated standard of proof applicable to parental claims of emotional distress arising out of neonatal malpractice to plaintiff-parents’ claim arising from the wrongful birth of their genetically impaired daughter, and the judgment notwithstanding the verdict vacating the jury’s award for emotional distress is reversed (cases like this are distinguished from cases of negligent injury to a fetus since in wrongful-birth cases there is no claim that the physician’s negligence caused the impairments and the parents’ claim of injury is independent of any claim asserted on the child’s behalf). The doctrine of avoidable consequences has no applicability to wrongful-birth cases based on inadequate genetic counseling, and the trial judge erred in applying it to reduce the damages awarded to plaintiffs for emotional distress. Defendant-doctor correctly argues that he is entitled to a new trial because of the substantial misconduct of plaintiffs’ attorney, who committed flagrant, multiple and continuing violations in his closing argument, including impermissibly invoking the “golden rule” with respect to calculating damages, misstating material elements of evidence, misrepresenting defendants’ testimony, making derisive and derogatory comments regarding defendants, their counsel, their witnesses and their evidence, and repeatedly making knowingly improper comments and, upon objection, impatiently withdrawing them, conveying the impression that the fault lay with defendants’ attorneys, not with him. 171 N.J.L.J. 912 TORTS — Auto Negligence — Respondeat Superior Carter v. Reynolds , A-104 September Term 2001; Supreme Court; opinion by Long, J.; concurrence by LaVecchia, J.; decided February 19, 2003. On appeal from the Appellate Division, 345 N.J. Super. 67 (App. Div. 2001). [Sat below: Judges Braithwaite, Coburn and Weissbard in the Appellate Division; Judge LeBon in the Law Division.] DDS No. 05-1-2856 Here, where defendant was required by her employer to use her personal car for traveling to and from her visits to clients, which took one-third of her work time, and was going home after a client visit when her car struck plaintiff, her employer is vicariously liable for her automobile negligence under the doctrine of respondeat superior because her use of her personal car served both her interests and advanced her employer’s business interests and thus fell within the dual-purpose required-vehicle exception to the going-and-coming rule and placed her squarely within the employment relationship and the scope of her employment at the time of the accident; in every case in which a plaintiff invokes the required-vehicle exception to the going-and-coming rule, she must establish that the employer in fact required the vehicle to be provided by the employee on the day in question – the “special mission” exception to the going-and-coming rule does not apply on these facts, and the Court declines to adopt the broad enterprise-liability theory that is the standard for respondeat superior in California. 171 N.J.L.J. 748 TORTS — Burdens — Inferences — Negligence — Slip and Fall — Supermarkets Nisivoccia v. Glass Gardens, Inc. , A-94 September Term 2001; Supreme Court; opinion by LaVecchia, J.; concurrence by Long, J.; decided January 22, 2003. On certification to the Appellate Division. [Sat below: Judges Fall and Axelrad in the Appellate Division; Judge Zucker-Zarett in the Law Division.] DDS No. 31-1-2606 In Wollerman the location of the slip and fall was the produce area of a supermarket, but the same considerations apply to the checkout area, where plaintiff was injured when she fell after stepping on a wayward grape — the rule is that, when a substantial risk of injury is inherent in a business operator’s method of doing business, the plaintiff is relieved of showing actual or constructive notice of the dangerous condition; plaintiff was entitled to a mode-of-operation inference of the store’s negligence here, because it should have anticipated that careless handling of grapes, packaged in open bags that invited spillage, was reasonably likely and could create a hazardous condition; the adequacy of the store’s efforts to exercise due care was for the jury, and the Appellate Division’s affirmance of the trial court’s directing a verdict for defendant is reversed. 171 N.J.L.J. 301 TORTS — Buses — Passengers Sanchez v. Independent Bus Co., Inc. et al, etc. , A-2193-01T3 and A-2394-01T3; Appellate Division; opinion by Petrella, P.J.A.D.; decided and approved for publication February 20, 2003. Before Judges Petrella, Lintner and Parker. On appeal from the Law Division, Essex County. [Sat below: Judge Fast.] DDS No. 31-2-2871 Where plaintiff-passengers were injured, one by a gunshot and the other when passengers were fleeing the bus when a confrontation erupted between two other passengers, and the passenger who fired the gun had not acted in a threatening manner when he boarded the bus, the events leading up to the shooting occurred within a time frame of about 30 seconds, and the bus driver was unable to see what was going on in the rear of the bus or prevent the confrontation or shooting, there is no basis for finding that the bus driver should have anticipated the events; therefore, the determination that the bus company and driver did not owe a duty to plaintiffs is affirmed. 171 N.J.L.J. 814 TORTS — Charitable Immunity Ryan v. Holy Trinity Evangelical Lutheran Church et al , A-116/117 September Term 2001; Supreme Court; opinion by Long, J.; decided February 11, 2003. On certification to the Appellate Division. [Sat below: Judges Havey, Braithwaite and Weissbard in the Appellate Division; Judge O'Hagan in the Law Division.] DDS No. 31-1-2807 Entities that can prove they are organized exclusively for educational or religious purposes automatically satisfy the Charitable Immunity Act, while entities that claim they are “organized exclusively for charitable purposes” must engage in the traditional factual analysis of Parker, including a source-of-funds assessment; by supporting social-outreach groups that enrich the life of the community at large, defendant-church was engaged in its religious good works at the time of plaintiff’s accident on its premises, and to the extent that the Appellate Division’s judgment granted summary judgment to the church and held that defendant-nonprofit community organization, which met on its premises, was organized exclusively for the educational purposes that plaintiff was participating in when she was accidentally injured, it is affirmed; to the extent that it remanded the case for a showing that the operating capital of that nonprofit organization is derived from charitable contributions or trust income it is reversed, and the summary judgment in the nonprofit organization’s favor granted by the trial court is reinstated. 171 N.J.L.J. 646 TORTS — Charitable Immunity — Churches — Non-Profit Organizations — Sidewalks Dupree v. The City of Clifton et al , A-10 September Term 2002; Supreme Court; per curiam opinion; decided February 24, 2003. On certification to the Appellate Division, 351 N.J. Super. 237 (App. Div. 2002). [Sat below: Judges Baime, Newman and Axelrad in the Appellate Division; Judge Gannon in the Law Division.] DDS No. 31-1-2905 The decision of the Appellate Division granting summary judgment to defendant-church in this sidewalk trip-and-fall case is affirmed for the reasons expressed below: where property abutting an offending sidewalk is owned by religious or other non-profit organizations, courts are directed to focus on the use of that property to determine whether to impose liability; where, as here, the use of a church’s property is exclusively religious, the organization will not be considered a “commercial” landowner and liability will not be imposed, but if the use is partially or completely “commercial,” the organization would be under a duty to maintain the sidewalk abutting its property and would be liable for injuries to the public caused by unrepaired defects; since defendant, a non-profit corporation created solely for religious, charitable, and educational purposes, does not engage in any commercial or business activity, does not operate a school on its premises, and does not rent out any part of its property, it does not have a duty to maintain the sidewalk and summary judgment was properly granted; although plaintiff may be correct in arguing that the Charitable Immunity Act does not preclude abutting-sidewalk liability since she was not a beneficiary of the church, the absence of that immunity does not affect the grant of summary judgment because the church’s insulation from liability does not derive from the Act but from the disinclination to extend to noncommercial landowners a duty to maintain an abutting sidewalk. 171 N.J.L.J. 795 TORTS — Charitable Immunity — Limitations of Actions — Medical Malpractice — Nonprofit Hospitals White v. Mattera et al , A-90 September Term 2001; Supreme Court; opinion by Zazzali, J.; decided February 5, 2003. On appeal from the Appellate Division. [Sat below: Judges Havey and Weissbard in the Appellate Division; Judge Vogelson in the Law Division.] DDS No. 29-1-2742 Here, where the nonprofit hospital’s alleged malpractice (the failure to give plaintiff’s decedent a pneumococcal vaccine after her splenectomy) occurred in 1986, before the 1991 amendment to N.J.S.A. 2A:53A-8 raising a nonprofit hospital’s liability limit from $10,000 to $250,000, but the hospital’s beneficiary did not suffer any harm until 1996 — when she contracted pneumococcal sepsis and died from complications associated with it — after the amendment’s effective date, the higher liability limit applies to plaintiff’s claims against the hospital; the decedent had no damages until 1996 and under the plain language of N.J.S.A. 2A:53A-8, which requires that a beneficiary “suffer damage” before the hospital is subject to suit under the Charitable Immunity Act, the determinative date for the applicability of the 1991 amendment is the point at which a patient sustains actual damage from a hospital’s negligent act or omission. 171 N.J.L.J. 537 TORTS — Design Defects — Federal Employer’s Liability Act — Negligence Stevens v. New Jersey Transit Rail Operations , A-5546-00T2; Appellate Division; opinion by Lisa, J.A.D.; decided and approved for publication January 2, 2003. Before Judges King, Wecker and Lisa. On appeal from the Law Division, Hudson County, L-3577-99. [Sat below: Judge McLaughlin.] DDS No. 25-2-2446 In this action brought under the Federal Employer’s Liability Act, for personal injuries sustained when plaintiff attempted to mount the motorized platform he had to use to perform his duties, his evidence was sufficient to establish a prima facie case of negligence, without expert testimony to establish a design defect, where the awkward contortions necessary to mount and dismount the platform were readily apparent to laypersons, who could rationally evaluate whether requiring plaintiff to do this deprived him of a reasonably safe workplace, and defendant was on notice of the condition, both constructively (by virtue of its self-evident nature) and actually (by virtue of the complaints of plaintiff and his co-workers); the trial judge properly dismissed defendant’s motions for summary judgment or involuntary dismissal and the jury verdict in favor of plaintiff is affirmed. 171 N.J.L.J. 117 TORTS — Immunity — Police — Tort Claims Act Kepler v. Taylor Mills Developers, Inc. et al , A-2336-01T2; Appellate Division; opinion by Landau, J.A.D. (retired and temporarily assigned on recall); decided and approved for publication January 28, 2003. Before Judges Newman, Parrillo and Landau. On appeal from the Law Division, Camden County, CAM-L-2458-99. [Sat below: Judge Cook.] DDS No. 36-2-2668 Here, where plaintiffs were injured after leaving a club, when a fight occurred in the parking lot used by club patrons pursuant to an agreement between the club and the Garden State Race Track, the trial judge correctly determined that there was no factual basis for the club’s cross-claim against the track asserting that the track had failed to properly illuminate the area and that the inadequate lighting was causally linked to the fight, and the grant of summary judgment to the track is affirmed. The trial judge correctly determined that there was no basis for the cross-claim against the police department, township, and officers who patrolled outside the club on a voluntary overtime basis (with the club reimbursing the department for the overtime costs), finding no breach of duty or of the agreement between the club and the police department, which did not impose an obligation to patrol the off-premises parking lot, and finding no factual basis for any claim of proximate cause; however, the Tort Claims Act defenses of immunity under N.J.S.A. 59:2-1 and 59:5-4 are primarily dispositive here — the immunity from liability for a failure to provide sufficient police service provided by 59:5-4 was not, and could not be, altered by the agreement between the club and the police, and is a firm basis for granting summary judgment to the public-entity defendants. 171 N.J.L.J. 484 TORTS — Indemnification — Negligence Azurak v. Corporate Property Investors et al , A-118 September Term 2001; Supreme Court; per curiam opinion; decided January 23, 2003. On certification to the Appellate Division, 347 N.J. Super. 516 (App. Div. 2002). [Sat below: Judges Carchman, Skillman and Wells in the Appellate Division; Judge Buczynski in the Law Division.] DDS No. 31-1-2626 To the extent that Doloughty distinguished between “broad” and “limited” indemnification clauses and suggested that the former provides a way to include an indemnitee’s own negligence or fault in an indemnification agreement without explicitly referring to it, that case is no longer good law, having been implicitly overruled by Ramos and Mantilla, and the Appellate Division correctly reversed the trial court’s ruling in favor of the indemnitee; even if the “broad form” notion had retained some vitality, the indemnification provision in this case would not have passed muster since it focused on the indemnitor, thus eliminating the possibility of construing it to include the indemnitee’s negligence; however, to allay even the slightest doubt on the issue, this is reiterated: to bring a negligent indemnitee within it, an indemnification agreement must specifically refer to the negligence or fault of the indemnitee. 171 N.J.L.J. 461 TORTS — Intentional Torts — Workers’ Compensation Calalpa v. Dae Ryung Co., Inc. et al , A-2476-01T5; Appellate Division; opinion by Conley, P.J.A.D.; decided and approved for publication January 31, 2003. Before Judges Conley, Carchman and Parrillo. On appeal from the Law Division, Passaic County, L-1096-99. [Sat below: Judge Dumont.] DDS No. 39-2-2700 While an employee may pursue both compensation benefits and common-law tort damages, he may not keep both, and here, where plaintiff-employee received workers’ compensation and settled an intentional-wrong tort litigation against his joint employers for three amputated fingers, the trial judge correctly accorded the workers’ compensation carrier a dollar-for-dollar lien out of the settlement proceeds, pursuant to N.J.S.A. 34:15-40; the intentional-wrong litigation was the functional equivalent of a third-person tortfeasor suit, since an employee who has pierced the threshold of the compensation bar has established that the employer’s conduct was beyond the natural risks of employment and did not arise out of the employment relationship — in effect, the employer has stepped out of its employer shoes into those of an actionable tortfeasor. 171 N.J.L.J. 540 TORTS — Limitations of Actions — Strict Liability — Toxic Torts Biniek v. Exxon Mobil Corp. et al , SOM-L-619-00; Law Division, Civil Part, Somerset County; opinion by Williams, J.S.C.; decided February 5, 2002; approved for publication March 7, 2003. DDS No. 17-3-3098 In this toxic-tort action, in which plaintiffs seek recovery for damages incurred as a result of contaminants that had allegedly emanated from a leaking gasoline storage tank, which had been installed by defendant-distributor at the gasoline station to which it had sold gasoline for many years, defendant’s motion for summary judgment on the ground that the action is barred by N.J.S.A. 2A:14-1.1, a statute of repose, is denied, since the sale and installation of the tanks by defendant into a pre-existing piping did not constitute the “design, planning, supervision, or construction of an improvement to real property,” and its activities did not constitute an “improvement to real property” under the statute. However, defendant is entitled to summary judgment with respect to all strict-liability claims asserted against it since, applying the factors in State Dept. of Envtl. Protection v. Ventron Corp., gasoline transportation and storage is not an abnormally hazardous activity; City of Bridgeton v. B.P. Oil, Inc. is disagreed with. 171 N.J.L.J. 1227 TORTS — Parental Immunity Buono v. Scalia , A-2393-01T1; Appellate Division; opinion by Alley, J.A.D.; concurrence by Stern, P.J.A.D.; decided and approved for publication March 11, 2003. Before Judges Stern, Collester and Alley. On appeal from the Law Division, Hudson County, HUD-446-01. [Sat below: Judge Curran.] DDS No. 31-2-3069 Foldi v. Jefferies , which upheld the parental-immunity doctrine as it applied to a child’s claim against her parents, retained the doctrine in the area of claims brought by third parties alleging negligent supervision by a parent; regardless of who seeks recovery for parents’ apparent failure to keep their child from causing harm, the two policy concerns outlined in Foldi — a parent’s freedom to decide how much independence to give the child and a parent’s unique position in determining how much supervision the child needs — still apply; therefore, where a claim was brought on behalf of a child who was injured by defendant’s 5-year-old son, alleging negligent supervision by defendant-parents, and the failure to supervise was neither willful nor wanton, the trial court’s order granting summary judgment to defendants is affirmed. 171 N.J.L.J. 1020 TORTS — Police — Tort Claims Act — Willful Misconduct Clarke v. Township of Mount Laurel et al , A-1116-01T3; Appellate Division; opinion by Wallace, J.A.D.; decided and approved for publication February 7, 2003. Before Judges Pressler, Wallace and Ciancia. On appeal from the Law Division, Burlington County, L-3434-97, L-3677-98, L-3678-98. [Sat below: Judge LeBon.] DDS No. 36-2-2782 Where there was evidence that there was a standing order to establish a perimeter when faced with a hostage, barricade, or sniper situation, but it was disputed whether the perimeter should be established inside or outside the house, a genuine issue of material fact existed as to whether the police intentionally disobeyed a standing order, and it was error to grant summary judgment in favor of defendants on a claim of willful misconduct based on the good-faith immunity in the enforcement of the law in N.J.S.A. 59:3-3 of the Tort Claims Act. 171 N.J.L.J. 657 TORTS — Spoliation of Evidence Swick v. The New York Times Company et al , A-2988-01T5; Appellate Division; opinion by Wallace, J.A.D.; decided and approved for publication February 7, 2003. Before Judges Wallace, Ciancia and Axelrad. On appeal from the Law Division, Middlesex County, L-10516-98. [Sat below: Judge Hurley.] DDS No. 32-2-2781 Here, where the manufacturer of the machine that caused plaintiff’s injury was out of business and had no insurance coverage, and therefore, plaintiff would not be able to recover any damages, plaintiff cannot prove that his employer’s conduct in failing to preserve the machine proximately caused any injury to him; the judgment dismissing plaintiff’s claim of intentional and negligent spoliation of evidence against his employer is affirmed. 171 N.J.L.J. 656 TORTS — Swimming Pools Tighe v. Peterson , A-1078-00T1; Appellate Division; opinion by King, P.J.A.D.; dissent by Wecker, J.A.D.; decided January 10, 2002; approved for publication December 23, 2002. Before Judges King, Cuff and Wecker. On appeal from the Law Division, Camden County, L-6507-98. [Sat below: Judge Mariano.] DDS No. 31-2-9241 Where plaintiff, injured in a diving accident, testified that he had been in defendant’s swimming pool approximately 20 times before his injury, and that he knew where the deep portions were situated and that he should not dive into the shallow part, defendants did not have a duty to warn him of the configuration of the pool’s depth; summary judgment in favor of defendants is affirmed. 171 N.J.L.J. 128 TOXIC TORTS (see TORTS) TRADE-NAME INFRINGEMENT (see INTELLECTUAL PROPERTY) TRANSPORTATION — Employment Law — Torts — Trucking Harris v. Mitchell , A-0232-01T5; Appellate Division; opinion by Havey, P.J.A.D.; decided and approved for publication March 14, 2003. Before Judges Havey, Wells and Payne. On appeal from the Law Division, Middlesex County, L-9809-99. [Sat below: Judge Garruto.] DDS No. 31-2-3121 The federal Interstate Commerce Act and Interstate Commerce Commission regulations were not intended to foreclose a carrier’s employee from recovering against the contractor-lessor and his employee under state law; therefore, where plaintiff’s employer leased a tractor-trailer from defendant, and the lease agreement, in accordance with ICC regulations, provided that the employer had exclusive control and responsibility for the tractor-trailer, the employee is not barred from bringing an action against defendant for his injuries while loading the trailer — this is not a case involving injuries to third parties using the public highways, and allowing plaintiff to pursue this action will not threaten the trucking industry and public safety. 171 N.J.L.J. 1145 TREATMENT (see CRIMINAL PRACTICE) TRUCKING (see TRANSPORTATION) UCCJA (see FAMILY LAW) UM/UIM COVERAGE (see INSURANCE LAW) UNCLAIMED PROPERTY (see GOVERNMENT) UNIFORM COMMERCIAL CODE (see CONTRACTS) VARIANCES (see LAND USE and PLANNING) VEHICULAR HOMICIDE (see CRIMINAL PRACTICE) VERBAL THRESHOLD (see INSURANCE LAW) VICARIOUS LIABILITY (see TORTS) VIDEO SIMULATIONS (see EVIDENCE) WATER (see PUBLIC UTILITIES) WEAPONS (see CRIMINAL PRACTICE) WHISTLEBLOWERS (see EMPLOYMENT) WILLFUL MISCONDUCT (see TORTS) WORKERS’ COMPENSATION (see also INSURANCE LAW, TORTS) WORKERS’ COMPENSATION — Bi-State Authorities — Jurisdiction Williams v. The Port Authority of New York and New Jersey , A-99 September Term 2001; Supreme Court; opinion by Coleman, J.; dissent by Long, J.; decided January 14, 2003. On appeal from the Appellate Division, 345 N.J. Super. 549 (App. Div. 2001). [Sat below: Judges Pressler, Wefing and Parrillo in the Appellate Division; Judge Karch in the Division of Workers' Compensation.] DDS No. 39-1-2542 Where, as here, a petitioner seeks to invoke the subject-matter jurisdiction of the Division of Workers’ Compensation based on the assertion that an occupational injury was caused or occurred in New Jersey, a standard must be established that is comparable to the Boyle standard in accident cases: the petitioner must demonstrate either that (1) there was a period of work exposure in this state that was not insubstantial under the totality of circumstances and given the nature of the injury; (2) the period of exposure was not substantial but the materials were highly toxic; or (3) the disease for which compensation is sought was obvious or disclosed while the petitioner was working in New Jersey; the Division is adjured to apply the standard adopted here flexibly on a case-by-case basis in the first instance, bearing in mind the multiple combinations of exposure. The New Jersey Division of Workers’ Compensation should not have exercised subject-matter jurisdiction over petitioner’s workers’ compensation claim, which alleges that he has an occupational pulmonary disease that is causally related to his employment with the Port Authority of New York and New Jersey; his four months of exposure in New Jersey, which predated 21 years of subsequent exposure in New York, was de minimis, and it cannot be said that it contributed, to a material degree, to the development of the chronic bronchitis that was not manifest or diagnosed until 20 years after his New Jersey exposure had ended. 171 N.J.L.J. 177 WORKERS’ COMPENSATION — Cancellation Calderon v. Jimenez , A-6323-00T2; Appellate Division; opinion by Kestin, P.J.A.D.; decided and approved for publication January 14, 2003. Before Judges Kestin, Eichen and Fall. On appeal from the Board of Review, Department of Labor. DDS No. 39-2-2541 The principle of Miney v. Baum, holding that the statutory provisions for cancellation of an auto policy must be followed, applies to workers’ compensation insurance; the judge of compensation’s decision that the carrier’s failure to use certified mail to cancel the workers’ compensation coverage resulted in the policy remaining in effect is affirmed. 171 N.J.L.J. 201 WORKERS’ COMPENSATION — Expert Testimony — Firefighters — Occupational Disease Lindquist v. Jersey City Fire Department , A-84 September Term 2001; Supreme Court; opinion by Coleman, J.; decided February 11, 2003. On certification to the Appellate Division. [Sat below: Judges Braithwaite and Coburn in the Appellate Division.] DDS No. 39-1-2809 The Appellate Division erred in reversing the finding of the judge of compensation that there was sufficient credible evidence of a causal connection between petitioner’s employment as a firefighter and his emphysema to sustain an award of disability benefits for an occupational disease; the less restrictive standard for the admissibility and reliability of medical-causation evidence in toxic tort cases of Rubanick v. Witco Chem. Co. should be applied in workers’ compensation cases in weighing opinion evidence proffered by experts, and although petitioner’s expert could not point to a conclusive scientific study, given the current level of scientific knowledge about emphysema (judicial notice is taken of studies showing that exposure to industrial pollutants at work can cause it and that, although smoking is the most important risk factor, other factors, including environmental exposure, exist), petitioner has demonstrated by a preponderance of the evidence that his work exposure substantially contributed to the development or aggravation of his emphysema, and he was not required to prove that his work exposure exceeded the exposure caused by his smoking or that the nexus between the disease and his employment was certain; the higher standard adopted in Fiore v. Consolidated Freightways with respect to dual causation (requiring a petitioner to prove that his work exposure exceeded the exposure caused by personal factors such as smoking) is limited to cardiovascular injuries and was improperly applied by the Appellate Division. The presumption established by N.J.S.A. 34:15-43.2 — that any impairment of the respiratory system of a volunteer firefighter is an occupational disease if it first manifests itself while he is active and if he had undergone a medical exam upon entering the service that did not disclose it, and if it manifests itself within 90 days of the event determined to be its cause — also applies to paid firefighters. 171 N.J.L.J. 658 Culbert v. City of Jersey City, A-92 September Term 2001; Supreme Court; opinion by Coleman, J.; decided February 11, 2003. On certification to the Appellate Division. [Sat below: Judges Braithwaite and Coburn in the Appellate Division.] DDS No. 39-1-2808 For the reasons stated in Lindquist v. Jersey City Fire Department [see preceding digest], the Appellate Division erred in reversing the judge of compensation’s determination that petitioner’s proofs on medical causation were sufficient to establish that his employment as a firefighter for more than 30 years caused or contributed to his pulmonary emphysema within the meaning of the occupational-disease provisions of the Workers’ Compensation Act; had the Appellate Division not mistakenly applied Fiore v. Consolidated Freightways (which should be restricted to cardiovascular and cerebrovascular occupational cases) to this pulmonary case, the concessions made by respondent’s expert (that it was possible that petitioner’s work as a firefighter could have been a material cause of his lung disease) would have compelled an affirmance. 171 N.J.L.J. 661 WRONGFUL BIRTH (see TORTS) YOUNG ADULT OFFENDERS (see CRIMINAL PRACTICE) 911 CALLS (see GOVERNMENT)

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.