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Body copy starts here . . . ACCOMPLICES (see CRIMINAL PRACTICE) ADMINISTRATIVE LAW — Alcoholic Beverages — Licenses — Limitations of Actions Plata v. Division of Alcoholic Beverage Control , A-4013-01T1; Appellate Division; opinion by Fuentes, J.A.D.; decided and approved for publication May 6, 2003. Before Judges King, Lisa and Fuentes. On appeal from a final decision of the Division of Alcoholic Beverage Control. DDS No. 47-2-3622 N.J.S.A. 33:1-12.18 requires only that an applicant for a renewal of a plenary retail-consumption license must file the application and the required fee with the director of the Division of Alcoholic Beverage Control’s designee (the municipal issuing authority) within 60 days of the expiration of the license-renewal period, and since the director is without authority to augment the statutory obligations, his order dismissing petitioner’s application for lack of jurisdiction, on the ground that she had not filed a separate verified petition with the director within the 60-day period explaining her failure to have timely applied for renewal, is reversed as being unreasonable, arbitrary and capricious; on remand, the director shall determine whether petitioner’s failure to have timely applied for renewal of her license was due to circumstances beyond her control. 172 N.J.L.J. 499 ADMINISTRATIVE LAW — Doctrine of Futility — Exhaustion of Remedies — Inverse Condemnation — Wetlands United Savings Bank v. New Jersey Department of Environmental Protection , A-5125-01T2; Appellate Division; opinion by Ciancia, J.A.D.; decided and approved for publication June 4, 2003. Before Justice Wallace (temporarily assigned) and Judges Ciancia and Axelrad. On appeal from the Law Division, Camden County, L-3293-01. [Sat below: Judge Fratto.] DDS No. 26-2-3887 Whatever the parameters of the doctrine of futility as an exception to the doctrine of exhaustion of administrative remedies, it does not come into play before an applicant for administrative permission even files the request, at least not where the agency has some discretion to grant the requests — the applicant has to give the agency an opportunity to exercise its discretion; here, where plaintiff failed to submit a permit application for development of Section 2 of the land, which included wetlands, and failed to remit the requested fee, thus denying the DEP an opportunity to exercise its discretion under N.J.S.A. 13:9b-22 by adequately defining the proposed land use, the trial court properly dismissed its inverse condemnation complaint, particularly since the DEP had demonstrated flexibility and had approved some development in Section 1 of the property. 172 N.J.L.J. 1098 ADMINISTRATIVE LAW — Due Process — Prisoners Jones v. Department of Corrections , A-3061-01T5; Appellate Division; opinion by Kestin, P.J.A.D.; decided and approved for publication March 24, 2003. Before Judges Kestin, Fall and Weissbard. On appeal from the Department of Corrections. DDS No. 13-2-3190 There is no basis in this inmate’s situation or in any recognizable interests of the prison’s authorities, and certainly none grounded on general principles, for considering this case an exception to fundamental due process requirements and litigation standards, and the hearing examiner’s finding that sustained the charge that appellant-prisoner had threatened a corrections officer with bodily harm is reversed; a proceeding in which the right of confrontation and cross-examination has been unduly curtailed, or the accused unreasonably limited in his access to witnesses in his favor, as here, lacks both the form and substance of a fair hearing, and if the Department of Correction’s distressing inability to comply with its due process obligations is not remedied, the result may come to be outright reversal without a remand for a new hearing, although so draconian a remedy will not be mandated in this case. 172 N.J.L.J. 134 ADMINISTRATIVE LAW — Hospitals — Rule-Making Besler & Company, Inc. v. Bradley , A-4049-01T2; Appellate Division; opinion by Lefelt, J.A.D.; decided and approved for publication June 11, 2003. Before Judges Skillman, Lefelt and Winkelstein. On appeal from a final decision of the Division of Medical Assistance and Health Services, Department of Human Services. DDS No. 22-2-3959 The Division of Medial Assistance and Health Services violated the Administrative Procedure Act and Metromedia, Inc. v. Dir., Div. of Taxation, when it issued a letter without formal rule-making that mandated that all rate appeals be submitted directly by hospitals and not by consultants or agents, and the agency’s directive is reversed and vacated — it is recommended that if the agency wishes to preclude agents from filing rate appeals on behalf of hospitals, it commence APA rule-making. 172 N.J.L.J. 1077 ADMISSION PRO HAC VICE (see LEGAL PROFESSION) ADOPTION (see GOVERNMENT) ADVERTISING INJURIES (see INSURANCE LAW) AFFIDAVITS OF MERIT (see CIVIL PRACTICE) AFFIRMATIVE DEFENSES (see EMPLOYMENT LAW) AFFORDABLE HOUSING (see LAND USE and PLANNING) AGE DISCRIMINATION (see EMPLOYMENT LAW) ALCOHOLIC BEVERAGES (see ADMINISTRATIVE LAW) ALIMONY (see FAMILY LAW) AMERICAN RULE (see ATTORNEYS’ FEES) AMPUTATIONS (see WORKERS’ COMPENSATION) ANTENNAS (see LAND USE and PLANNING) APPEALS (see also GOVERNMENT) APPEALS — Settlements Brown v. Pica , A-1057-01T2; Appellate Division; per curiam opinion; decided and approved for publication June 2, 2003. Before Judges Stern, Collester and Alley. On appeal from the Law Division, Mercer County, L-4137-97. [Sat below: Sabatino.] DDS No. 07-2-3849 Despite the Appellate Division’s appreciation of the communications from counsel about the pending and actual settlement in this case, it takes this opportunity to remind the bar of its obligation, too often disregarded, to advise it, as expeditiously as possible, of a settlement or potential settlement of a case on appeal; this appeal is dismissed with prejudice and without costs. 172 N.J.L.J. 1003 ARBITRATION (see ATTORNEYS’ FEES, CIVIL PRACTICE) ASBESTOS (see PRODUCT LIABILITY) ASSIGNMENTS (see CREDITORS’ and DEBTORS’ RIGHTS) ATTORNEYS (see BUSINESS LAW, CREDITOR’S and DEBTOR’S RIGHTS) ATTORNEYS’ FEES (see also FAMILY LAW, GOVERNMENT, INSURANCE LAW) ATTORNEYS’ FEES — American Rule — Trusts and Estates — Undue Influence In the Matter of the Trusts Created by Laura J. Niles , A-7/8 September Term 2002; Supreme Court; opinion by Coleman, J.; dissent by LaVecchia, J.; decided May 28, 2003. On certification to the Appellate Division. [Sat below: Judges Axelrad, Fall and Baime in the Appellate Division; Judge Seybolt in the Chancery Division.] DDS No. 38-1-3822 Although the American Rule, which is embodied in Rule 4:42-9, prohibits a prevailing party from recovering attorneys’ fees from a losing party unless they are authorized by a statute, court rule, or contract, an exception is created here to provide that, when an executor or trustee reaps a substantial economic or financial benefit from undue influence, the fiduciary may be assessed counsel fees, incurred by plaintiffs and third parties in litigation to restore the estate’s assets to what they would have been had the undue influence not occurred; this exception is limited to cases in which an executor’s or a trustee’s undue influence results in the development or modification of estate documents that create or expand the fiduciary’s beneficial interest in the estate, and the undue influence, as a form of fraud, must be proved by clear and convincing evidence; here, where a mother and son working as a team unduly influenced an 88-year-old, single, demented multimillionairess to modify three inter-vivos trusts to name the son as trustee and to confer on them substantial economic benefits, they shall be jointly and severally liable for all reasonable attorneys’ fees incurred by the former trustee and the primary residuary beneficiary under the former trust agreements and the third parties in this litigation. 172 N.J.L.J. 974 ATTORNEYS’ FEES — Arbitration Kamaratos et al v. Palias, etc. , A-0201-01T2; Appellate Division; opinion by Wefing, J.A.D.; concurrence by Fuentes, J.A.D.; decided and approved for publication May 6, 2003. Before Judges Wefing, Lisa and Fuentes. On appeal from the Law Division, Monmouth County, MON-L-4300. [Sat below: Judge Clarkson Fisher Jr.] DDS No. 04-2-3623 An arbitration provision in a retainer agreement may be enforceable provided it clearly states the consequences of such an agreement, but it cannot supersede the fee-arbitration mechanism provided for in R. 1:20A, and the agreement should contain a clear statement that a client has an absolute right to proceed under R. 1:20A; here, because it cannot be concluded that plaintiffs understood all the consequences of agreeing to arbitration, the order granting the attorney’s motion to compel arbitration is reversed. 172 N.J.L.J. 500 ATTORNEYS’ FEES — Consumer Fraud Tanksley v. Cook , A-5683-01T2; Appellate Division; opinion by King, P.J.A.D.; decided and approved for publication May 2, 2003. Before Judges King, Wecker and Lisa. On appeal from the Law Division, Burlington County, DC-7165-00. [Sat below: Judge Baldwin.] DDS No. 09-2-3599 On the novel issue of fee-shifting in the context of process to enforce judgments or in supplementary proceedings, the mandatory award of “reasonable attorneys’ fees, filing fees and reasonable costs of suit” under N.J.S.A. 56:8-19 should include fees and costs incurred in satisfying a judgment awarded pursuant to the Consumer Fraud Act. 172 N.J.L.J. 502 ATTORNEYS’ FEES — Frivolous Claims Savona v. Di Giorgio Corporation et al , A-3601-01T5; Appellate Division; opinion by Wells, J.A.D.; decided and approved for publication May 2, 2003. Before Judges Havey, Wells and Payne. On appeal from the Law Division, Middlesex County, L-8585-00. [Sat below: Judge Hurley.] DDS No. 25-2-3601 Here, where plaintiff’s action for wrongful termination was dismissed on defendant-employer’s motion for summary judgment after the trial judge concluded that the employee handbook could not be interpreted to provide that plaintiff was anything other than an at-will employee, the denial of defendant’s application for attorneys’ fees is reversed since, although the judge properly concluded that the Frivolous Claims Statute should be read restrictively and that the dismissal on summary judgment was not evidence that plaintiff’s claim was frivolous, his conclusory remarks do not provide articulated findings on what gave her suit the “marginal merit” necessary to avoid the imposition of fees; the matter is remanded for reconsideration on the merits and more specific findings. While an attorney’s pursuit of a frivolous claim may not be imputed to the client, that is no basis for concluding that an action is not frivolous; if the matter is frivolous on the merits, the client who pursued the action is liable for fees, but if the client is genuinely unaware of the claim’s frivolous nature and it was pursued by her attorney, liability may be posited against her attorney; if the court determines on remand that this action was frivolous, the responsibility between plaintiff and her attorney must be addressed. 172 N.J.L.J. 480 ATTORNEYS’ FEES — Offer-of-Judgment Rule Cripps v. DiGregorio et al , A-5322-00T1; Appellate Division; opinion by Wecker, J.A.D.; decided and approved for publication June 13, 2003. Before Judges King, Wecker and Lisa. On appeal from the Law Division, Bergen County, L-448-96. [Sat below: Judge Walsh.] DDS No. 07-2-3988 Schettino v. Roizman Development, Inc ., controls in this multidefendant, multicount suit, in which plaintiff received two separate offers of judgment, for $15,000 each, on the same day, in settlement of all of his claims against all defendants, but did not accept either of them, and the judgment against all defendants totaled $19,194, and the trial court correctly dismissed the counsel fee application filed on behalf of those defendants who together submitted one of the offers (had this been a single-defendant case, or had there been a single offer of judgment of $30,000 on behalf of all defendants, a fee award would have been allowable under Rule 4:58-3); applying the offer-of-judgment rule in multidefendant, multicount cases, where fewer than all defendants are named in some counts, and both liquidated and unliquidated damages are sought, will continue to be difficult, despite the amendments to Rule 4:58, and the continuing applicability of Schettino under the amended offer-of-judgment rule has yet to be determined. 172 N.J.L.J. 1171 AUTO ARBITRATION (see CIVIL PRACTICE) AUTO INSURANCE (see CIVIL PRACTICE, INSURANCE LAW) AUTOMOBILES (see TORTS) BAIL (see CRIMINAL PRACTICE) BANKRUPTCY (see REAL PROPERTY, TORTS) BEACH TAGS (see GOVERNMENT) BEST PRACTICES (see CIVIL PRACTICE) BOARDS OF CHOSEN FREEHOLDERS (see SCHOOLS and EDUCATION) BURDENS (see CREDITORS’ and DEBTORS’ RIGHTS, INSURANCE LAW) BUSINESS LAW — Attorneys — Corporations — Liens — Power of Attorney D.D.B. Interior Contracting Inc. v. Trends Urban Renewal et al , A-23 September Term 2002; Supreme Court; opinion by Zazzali, J.; decided May 12, 2003. On certification to the Appellate Division. [Sat below: Judges Petrella and Alley in the Appellate Division; Judge Fuentes in the Law Division.] DDS No. 43-1-3663 Given the Legislature’s failure to define “duly authorized officer” in N.J.S.A. 2A:44A-6 and the unique facts here, where the sole owner and president of plaintiff-corporation executed a power of attorney intended to confer on the corporate attorney the authority to sign and prosecute a construction-lien claim on behalf of the corporation, the lower courts erred in discharging the corporation’s lien on the ground that it had not been signed by a duly authorized officer; however, since harm to a corporation or its shareholders or prejudice to interested parties may result when an individual who signs a lien-claim form on behalf of a corporation is not an officer of that corporation, in the future, when a corporation intends to appoint an attorney to sign, acknowledge and verify a lien claim, it must ensure that he is a corporate officer — execution of a power of attorney will not be deemed adequate to vest an attorney-in-fact with the authority of a “duly authorized officer” under N.J.S.A. 2A:44A-6; Gallo v. Sphere Construction Corp. is distinguished. 172 N.J.L.J. 561 CAFRA (see LAND USE and PLANNING) CARSA (see CIVIL PRACTICE) CAUSATION (see CRIMINAL PRACTICE) CDS (see CRIMINAL PRACTICE) CEPA (see EMPLOYMENT LAW) CHECKS (see WORKERS’ COMPENSATION) CHILD ABUSE (see FAMILY LAW) CHILD SUPPORT (see FAMILY LAW) CHILD VICTIMS (see CRIMINAL PRACTICE) CHILDREN (see TRUSTS and ESTATES) CHIROPRACTORS (see INSURANCE LAW) CHOICE OF LAW (see INSURANCE LAW) CIVIL PRACTICE — Affidavits of Merit — Medical Malpractice Douglass v. Obade et al , A-3696-01T3; Appellate Division; opinion by Parker, J.A.D.; decided and approved for publication April 4, 2003. Before Judges Braithwaite, Lintner and Parker. On appeal from the Law Division, Gloucester County, L-2069-00. [Sat below: Judge Herman.] DDS No. 29-2-3326 Plaintiffs’ medical-malpractice complaint was correctly dismissed for failure to file a timely affidavit of merit, and their argument that, as long as they had filed their motion for an extension within 120 days from the date defendants’ answer was filed, they should be permitted an extension was properly rejected by the court below; since N.J.S.A. 2A:53A-27 requires that the affidavit be filed within 60 days of the defendants’ answer and authorizes the court to grant one 60-day extension, the maximum time during which it could be served was 120 days from the date the answer was filed. 172 N.J.L.J. 152 CIVIL PRACTICE — Arbitration — Auto Insurance Ravelo v. Campbell , A-1328-00T3; Appellate Division; opinion by Lefelt, J.A.D.; decided and approved for publication June 2, 2003. Before Judges Skillman, Cuff and Lefelt. On appeal from the Law Division, Essex County, L-13032-98. [Sat below: Judge Winard.] DDS No. 03-2-3848 Where two separate suits were filed against defendant by the driver and passengers of the other car but defendant’s insurance company claimed it never received the passengers’ suit, and the cases were consolidated and an arbitration hearing held, the arbitration award should have been vacated with respect to the damage award in favor of the passengers since defendant was not a “party” to that suit because he failed to answer the complaint and no default was entered; however, defendant is collaterally estopped from contesting liability for the accident since his interest in defending that claim is identical to both actions by the driver and passengers. 172 N.J.L.J. 1002 CIVIL PRACTICE — Arbitration — Service — Trial De Novo Flett Associates v. S.D. Catalano, Inc. , A-4916-01T3; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication June 11, 2003. Before Judges Skillman, Cuff and Winkelstein. On appeal from the Law Division, Ocean County, L-2446-99. [Sat below: Judge Campbell.] DDS No. 03-2-3952 The requirement of Rule 4:21A-6(b)(1) that a trial de novo demand be served within 30 days may be relaxed on a showing of good cause and the absence of prejudice; where the secretary at defendant’s law firm filed the demand with the court clerk, but before she was able to serve the motion on plaintiff she suffered an injury that kept her out of work for a month, and the only prejudice to plaintiff was the filing of a motion to confirm the arbitration award, her injury was an unusual circumstance that provides the requisite good cause for relaxation of the service requirement; the order confirming the arbitration award is reversed. 172 N.J.L.J. 1099 CIVIL PRACTICE — Auto Arbitration — Equitable Estoppel — Verbal Threshold Hernandez v. Stella et al , A-6231-01T5; Appellate Division; opinion by Coburn, J.A.D.; decided and approved for publication April 16, 2003. Before Judges Stern, Coburn and Collester. On appeal from the Chancery Division, Family Part, Burlington County, L-3481-00. [Sat below: Judge Bell.] DDS No. 23-2-3442 Although the Automobile Insurance Cost Reduction Act (AICRA) applies in this case, and plaintiff (who was injured in a two-car accident) had elected the verbal threshold in his policy, defendants are estopped, on the trial de novo, from relying on AICRA’s requirement of a physician’s certification because they did not raise the point until after the Rule 4:21A arbitration; a claim of equitable estoppel can defeat a motion to dismiss for failure to serve a physician’s certification where, as here, that claim was not raised until after discovery had been completed, the case had been arbitrated (and plaintiff had prevailed), and the statute of limitations had run; the Law Division’s dismissal on defendants’ motion is reversed. 172 N.J.L.J. 225 CIVIL PRACTICE — Best Practices — Discovery Smith v. Schalk , A-2895-01T3; Appellate Division; opinion by Wells, J.A.D.; decided and approved for publication May 27, 2003. Before Judges Rodriguez, Wells and Payne. On appeal from the Law Division, Hudson County, L-9686-98. [Sat below: Judge Margulies.] DDS No. 19-2-3799 The Best Practices rule amendments apply to cases filed, as this one was, prior to September 5, 2000, and the trial judge erred in admitting plaintiff’s medical report and tests, which plaintiff included in its amended answers to interrogatories and served on defendant a few days before trial (which was adjourned for one month), in the absence of an application to amend her answers to interrogatories, supported by an affidavit that due diligence would not have produced a much earlier report, as required by R. 4:17-7. 172 N.J.L.J. 997 CIVIL PRACTICE — CARSA — Limitations of Actions Lopez v. Gillian’s Pier , A-4765-01T3; Appellate Division; opinion by Hoens, J.A.D.; decided and approved for publication April 15, 2003. Before Judges Pressler, Wallace and Hoens. On appeal from the Law Division, Cape May County, L-53-01. [Sat below: Judge Visalli.] DDS No. 31-2-3427 The trial court correctly dismissed the complaint against the amusement park on the ground that plaintiff failed to comply with the Carnival-Amusement Rides Safety Act (CARSA), which mandates filing a written accident report within 90 days with the operator of the park as a precondition to filing a suit for personal injury; although that period may be extended to within one year of the accident by a judge, based on a motion demonstrating “sufficient reason” for having failed to file earlier and on a finding that the operator of the park would not be “substantially prejudiced,” plaintiff never asked for an extension of time — in fact, he never filed the required notice at all — and, since his doctor had alerted him to the connection between his stroke and the roller-coaster ride before the one-year period had expired, he is not entitled to the benefit of the discovery rule. 172 N.J.L.J. 225 CIVIL PRACTICE — Condominiums — Limitations of Actions Cyktor et al v. Aspen Manor Condominium Association et al , A-2554-01T5; Appellate Division; opinion by Braithwaite, J.A.D.; decided and approved for publication April 17, 2003. Before Judges Braithwaite, Lintner and Parker. On appeal from a final administrative determination of the Department of Community Affairs. DDS No. 34-2-68 The 10-year statute of repose in N.J.S.A. 2A:14-1.1, which provides protection for construction for an improvement to real property, bars respondent Bureau of Regulatory Affairs, Department of Community Affairs (DCA), from commencing an enforcement action against appellants, who constructed a condominium development more than 10 years prior to the DCA action, and the DCA’s final decision, holding that the statute of repose applies only to actions to recover damages, is reversed. 172 N.J.L.J. 336 CIVIL PRACTICE — Discovery Leon v. Parthiv Realty Co., Inc. , A-4567-01T3; Appellate Division; opinion by Parker, J.A.D.; decided and approved for publication May 7, 2003. Before Judges Braithwaite, Lintner and Parker. On appeal from the Law Division, Passaic County, PAS-L-4893-99. [Sat below: Judge Dumont.] DDS No. 07-2-3630 Where plaintiffs’ counsel failed to respond to either the motion to dismiss the complaint without prejudice for failure to answer interrogatories or the subsequent motion to dismiss with prejudice, and did not demonstrate any extraordinary circumstances for his failure to serve answers until more than a month after the motion to dismiss with prejudice was granted, the order dismissing the complaint with prejudice is affirmed; there is no requirement under R. 4:23-5 that the responding party’s counsel’s appearance on the return date of a motion to dismiss with prejudice is mandatory. 172 N.J.L.J. 481 CIVIL PRACTICE — Discovery — Extensions of Time Vitti v. Brown et al , ATL-L-3863-01; Law Division, Atlantic County; opinion by Todd, P.J.Cv.; decided February 11, 2003; approved for publication March 14, 2003. DDS No. 07-3-3295 Pursuant to Rule 4:24-1(c), a party requesting an extension of time for discovery after the time for discovery has expired must show exceptional circumstances, and the application must (1) provide the reasons why discovery was not completed within time and show counsel’s diligence in pursuing discovery during that period, (2) show that the additional discovery sought is essential, (3) explain counsel’s failure to request an extension of the time within the original discovery period, and (4) show that the circumstances were clearly beyond the control of the attorney and litigant seeking the extension; since defendants have not met those requirements, their motion is denied. 172 N.J.L.J. 57 CIVIL PRACTICE — Due Diligence — Fictitious-Name Practice Claypotch v. Heller, Inc. et al , A-22-01T5; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication May 30, 2003. Before Judges Skillman, Lefelt and Winkelstein. On appeal from the Law Division, Hunterdon County, Docket No. L-93-99. [Sat below: Judge Bernhard.] DDS No. 32-2-3843 The trial court’s orders denying plaintiff’s motion for leave to replace the fictitious name with the real name of the manufacturer of the punch press that injured him in the course of his employment, adding it as a direct defendant, and granting the seller’s motion for summary judgment are reversed; plaintiff exercised due diligence in identifying the manufacturer of the punch press here, where the fictitiously named defendant received notice of the action by service of the seller’s third-party complaint, and in substituting its real name as a direct defendant once he became aware that it, not the seller, was the manufacturer; moreover, under Rule 4:46-2(a), unless the product’s seller identifies the manufacturer and moves for dismissal during the prescribed discovery period, which it did not do here, the plaintiff may be forced to seek an extension of time to conduct discovery, which would be relevant only to the product seller’s defense under N.J.S.A. 2A:58C-9. 172 N.J.L.J. 999 CIVIL PRACTICE — Limitations of Actions — Substantial Compliance Berke et al v. Buckley Broadcasting Corporation, d/b/a WOR Radio , A-2541-01T5; Appellate Division; opinion by Pressler, P.J.A.D.; decided and approved for publication April 30, 2003. Before Judges Pressler, Axelrad and Hoens. On appeal from the Hudson County, HUD-L-3071-01. [Sat below: Judge D'Italia.] DDS No. 07-2-3571 Where the District Court dismissed plaintiffs’ federal claim with prejudice and declined to exercise supplemental jurisdiction over the state-law claims, dismissing them without prejudice, and the Third Circuit dismissed plaintiffs’ appeal as untimely based on plaintiffs’ misunderstanding of the effective date of the District Court judge’s sua sponte order that dismissed the complaint against the remaining defendants, plaintiffs’ failure to file this complaint in state court prior to the expiration of the six-year limitations period is curable under the doctrine of substantial compliance; balancing plaintiffs’ diligence in pursing its appeal against the prejudice to defendant in obtaining a new expert witness, the 10-week delay in filing the complaint after dismissal of the federal appeal is not too protracted to avoid applying the substantial compliance doctrine; the dismissal of the complaint by the trial judge is reversed. 172 N.J.L.J. 411 CIVIL PRACTICE — Settlements Brown v. Pica , MER-L-4137-97; Law Division, Mercer County; opinion by Sabatino, J.S.C.; decided July 10, 2001; approved for publication June 2, 2003. DDS No. 07-3-3969 Confidentiality is a fundamental ingredient of the settlement process and, just as offers of compromise have been excluded for decades in New Jersey from consideration as proof of the merit, or lack of merit, of a litigated claim, what a litigant may have offered to take or to pay in settlement prior to a jury verdict has no bearing on whether that verdict, once announced, is excessive or insufficient as a matter of law; defendant’s motion for a new trial on that ground is denied. 172 N.J.L.J. 1003 CIVIL SERVICE (see GOVERNMENT) CLIENT PROTECTION FUND (see LEGAL PROFESSION) COACHES (see CRIMINAL PRACTICE) COHABITATION (see FAMILY LAW) COLLATERAL ESTOPPEL (see INSURANCE LAW) COLLATERAL ISSUES (see CRIMINAL PRACTICE) COMITY (see INSURANCE LAW) COMMERCIAL PROPERTY OWNERS (see TORTS) COMMITMENTS (see CRIMINAL PRACTICE) CONDEMNATION (see LAND USE and PLANNING) CONDOMINIUMS (see CIVIL PRACTICE) CONFLICTS OF INTEREST (see LAND USE and PLANNING) CONFRONTATION CLAUSE (see CRIMINAL PRACTICE) CONSTITUTIONAL LAW (see CRIMINAL PRACTICE) CONSTRUCTIVE TRUSTS (see TRUSTS and ESTATES) CONSULAR RELATIONS (see CRIMINAL PRACTICE) CONSUMER FRAUD (see ATTORNEYS’ FEES) CONSUMER PRODUCTS (see WORKERS’ COMPENSATION) CONSUMER PROTECTION — Discovery Misrepresentation — Tires Talalai v. Cooper Tire & Rubber Co. , MID-L-8839-00 MT; Law Division, Middlesex County; opinion by Corodemus, J.S.C.; decided April 16, 2001; approved for publication May 14, 2003. DDS No. 09-3-3740 In this class action, brought under the Consumer Fraud Act, alleging that defendant-tire company consciously incorporated a known hazard into its manufacturing process and failed to tell consumers the true nature of the product they were buying, plaintiffs have adequately pled an ascertainable loss resulting from an affirmative misrepresentation — they need not prove actual injury but only an estimate of damages (the market value of the tires they purchased) calculated with a reasonable degree of certainty — and their complaint sets forth a viable claim under the Act; the complaint is not pre-empted by the National Traffic and Motor Vehicle Safety Act since plaintiffs did not attempt to impose new or different standards or regulations on defendant, but rather seek damages for the defective tires they purchased; nor have plaintiffs failed to plead fraud with the requisite particularity required by Rule 4:5-8 — the information cited by defendant as lacking (the tire type, size and price and the dates of purchase) are matters of discovery. 172 N.J.L.J. 689 CONSUMER PROTECTION — Franchises — Fraud Kavky v. Herbalife International of America et al , A-6605-01T5; Appellate Division; opinion by Coburn, J.A.D.; decided and approved for publication April 22, 2003. Before Judges Stern, Coburn and Collester. On appeal from the Law Division, Atlantic County, L-3842-01. [Sat below: Judge Todd.] DDS No. 09-2-3488 Franchises and distributorships come within the Consumer Fraud Act’s definition of merchandise when they are not covered by the Franchise Practices Act and are offered to the general public, and the Third Circuit’s contrary decision in J&R Ice Cream Corp. v. California Smoothie Licensing Corp. is an unduly restrictive interpretation of the Consumer Fraud Act; a franchise not otherwise regulated by the Franchise Practices Act is not merely similar in nature to the items enumerated in N.J.S.A. 56:8-1(c), but actually consists of those items in that it involves the provision of both services and commodities and, therefore, it is covered under the Consumer Fraud Act as something offered to the public for sale; the dismissal of the complaint alleging a violation of the Consumer Fraud Act arising out of plaintiff’s purchase of a franchise from defendants is reversed. 172 N.J.L.J. 337 CONSUMER PROTECTION — Fraud — Home Improvements — Mortgages Scott et al v. Mayflower Home Improvement Corp. et al , PAS-L-2628-95; Law Division, Passaic County; opinion by Humphreys, J.S.C. (retired/on recall); decided August 10, 2001; approved for publication June 9, 2003. DDS No. 15-3-3972 Where the home-improvement company engaged the services of a financial institution to provide mortgages to plaintiffs, and the institution then sold the mortgages, in accordance with the FTC Holder Rule, 16 C.F.R. § 433.2, which modified the holder-in-due-course rule to protect consumers, the assignees are subject to the claims and defenses of homeowners; the homeowners are entitled to restitution from the assignees, but they are not entitled to treble damages and counsel fees under the Consumer Fraud Act in the absence of any wrongdoing; contracts, notes and mortgages that violate or were obtained by practices that violate the New Jersey Home Repair Financing Act and the Consumer Fraud Act are void and unenforceable. 172 N.J.L.J. 1165 CONSUMER PROTECTION — Physicians — Professionals Macedo et al v. v. Dello Russo et al , A-4818-01T3; Appellate Division; opinion by Kestin, P.J.A.D.; decided and approved for publication March 27, 2003. Before Judges Kestin, Eichen and Weissbard. On appeal from the Law Division, Civil Part, Bergen County, BER-L-9312-01. [Sat below: Judge Donohue.] DDS No. 09-2-3222 There is no logical underpinning for a rule that permits professionals and their practice entities to evade the strictures of the Consumer Fraud Act simply because of their professional status, and when professionals engage in common commercial activity designed to attract the patronage of the public they should be held to the same standards of truth and completeness that govern the sales activities of all other persons or entities; therefore, the order granting defendant’s motion to dismiss the complaint for failure to state a cause of action against a physician, his business entities and an employee-physician is reversed. 172 N.J.L.J. 78 CONTRACTS (see also EMPLOYMENT LAW, SCHOOLS and EDUCATION) CONTRACTS — Forum Non Conveniens — Remedies BOC Group, Inc. v. Chevron Chemical Company, L.L.C. , A-0338-01T3; Appellate Division; opinion by Winkelstein, J.A.D.; decided and approved for publication April 3, 2003. Before Judges Skillman, Cuff and Winkelstein. On appeal from the Law Division, Union County, UNN-L-0534-99. [Sat below: Judge Pisansky.] DDS No. 08-2-3309 Where the contract for the supply of nitrogen contained an exclusive-remedy provision limiting defendant’s rights, in the event plaintiff failed to deliver nitrogen at the times and in the quantities needed, to recover from plaintiff the difference between the cost of purchasing nitrogen elsewhere and charge plaintiff for any additional expense, and defendant’s claim that it was unable to purchase nitrogen from another source was unsupported by the facts, the trial court correctly concluded that defendant did not have the right to terminate the contract, and summary judgment in favor of plaintiff is affirmed; additionally, although both parties have plants in Louisiana, plaintiff has its headquarters in New Jersey, employing more than 1,500 people, the billing and delivery orders of the procurement contract with defendant were processed out of the New Jersey office, defendant has a New Jersey office, and its national control center for all the orders and deliveries for its plants in the United States is in Pennsylvania, and the denial of defendant’s motion to dismiss the complaint on forum non conveniens grounds is affirmed. 172 N.J.L.J. 153 CORPORATIONS (see BUSINESS LAW) COUNTY COLLEGES (see SCHOOLS and EDUCATION) CREDITOR FRAUD (see CREDITOR’S and DEBTOR’S RIGHTS) CREDITORS’ and DEBTORS’ RIGHTS — Assignments — Burdens — Dishonored Checks Triffin v. Johnston , A-4081-01T4; Appellate Division; opinion by Eichen, J.A.D.; decided and approved for publication March 21, 2003. Before Judges Kestin, Eichen and Weissbard. On appeal from the Law Division, Special Civil Part, Monmouth County, DC-11392-01. [Sat below: Judge Scully.] DDS No. 15-2-3177 The trial court’s dismissal of this action to collect on two dishonored checks is affirmed here, where plaintiff, in the business of buying dishonored checks from licensed check cashers and enforcing them free of personal defenses based on his status as an assignee of a holder in due course, failed to satisfy his burden of proof with respect to the authenticity of the assignments of the two checks (on which payment had been stopped because the services for which they had been written were allegedly deficient); the court did not err in refusing to permit plaintiff to supplement his proofs after the trial, since it was plaintiff’s burden to have demonstrated before the close of his proofs that the assignments were valid and enforceable, which he knew was a critical fact to be proved, particularly since the proofs would not have dictated a different result; although this case is not an appropriate vehicle for questioning the applicability of the holder-in-due-course doctrine to persons in the business of purchasing dishonored checks, it is suggested that the Legislature may wish to address this problem. 172 N.J.L.J. 59 CREDITOR’S and DEBTOR’S RIGHTS — Attorneys — Creditor Fraud Banco Popular North America v. Gandi et al , A-4040-01T2; Appellate Division; opinion by Wefing, J.A.D.; decided and approved for publication April 29, 2003. Before Judges Wefing, Lisa and Fuentes. On appeal from the Law Division, Camden County, CAM-L-7063-01. [Sat below: Judge Cook.] DDS No. 04-2-3549 When viewed under the indulgent standards of Printing Mart v. Sharp Electronics, plaintiff’s allegation that defendant-attorney advised a client who was indebted to plaintiff to transfer his assets to his wife to defeat the rights of his creditors and assisted in the transfer by preparing the deeds contained a fundament of a claim for creditor fraud, and plaintiff’s allegations of creditor fraud, civil conspiracy, and his claim against defendant’s law firm and partners are reinstated; however, the trial court correctly dismissed the claims of common-law fraud and negligence in connection with an opinion letter issued by defendant since there is no evidence of misrepresentation where nothing in the letter purports to address his client’s financial condition. 172 N.J.L.J. 393 CRIMINAL PRACTICE State v. De La Hoya et al , A-5850-01T1; Appellate Division; opinion by Pressler, P.J.A.D.; decided and approved for publication April 7, 2003. Before Judges Pressler, Ciancia and Hoens. On appeal from the Law Division, Camden County, 00-06-02137. [Sat below: Judge Thomas A. Brown Jr.] DDS No. 14-2-3335 In considering applications for remission of a bail forfeiture, the trial court, in exercising its discretion, must not only take into account the relevant Hyers and other overarching factors but must also explain how it weighed them; where, as here, the surety had made reasonable efforts to supervise the defendant and effected his recapture by its own efforts, the period of absence was within reasonable limits and the fugitive did not commit another crime while absent, and the only negative consideration is the intangible injury to the public, the remission should be substantial; taking into account not only an appropriate percentage of the bail but also its quantum, the 50 percent, or $13,750, the trial court charged to the surety is reversed — $5,500 is ample compensation to the State for its intangible injuries. 172 N.J.L.J. 137 CRIMINAL PRACTICE — Accomplices — Expungement — Public Officials In the Matter of Expungement Application of P.A.F. , A-18 September Term 2002; Supreme Court; opinion by Albin, J.; decided May 8, 2003. On certification to the Appellate Division. [Sat below: Judges Stern, Lintner and Parker in the Appellate Division; Judge Triarsi in the Law Division.] DDS No. 14-1-3648 Although, by the express language of the third paragraph of N.J.S.A. 2C:52-2b, a public official who commits a crime involving or touching his office is not eligible for expungement of the record of his conviction, that provision does not bar a private citizen, who aided and abetted the public official in the commission of the crime, from the benefits of the expungement process; the denial of appellant’s petition to expunge his record of conviction is reversed. 172 N.J.L.J. 564 CRIMINAL PRACTICE — Bail State v. Harmon, et al, etc. , A-5539-01T1; Appellate Division; per curiam opinion; decided and approved for publication June 13, 2003. Before Judges Pressler, Ciancia and Hoens. On appeal from the Law Division, Camden County. [Sat below: Judge Thomas A. Brown Jr.] DDS No. 14-2-4001 Where defendant remains a fugitive when a motion is made by the surety to remit bail, the essential undertaking of the surety to recapture the defendant remains unsatisfied and the denial of any remission is entirely appropriate; because the recapture of the fugitive-defendant and his ultimate appearance before the court constitute the essence of the surety’s undertaking, even if the surety’s efforts in the recapture were minimal the fact of the recapture must be accorded weight in terms of implementation of the policies identified — this is particularly so where the time lapse between nonappearance and recapture is not inordinately long and the defendant has not committed a new crime during his fugitive period; where the defendant was charged with committing a new offense while a fugitive, although the surety had not supervised or monitored defendant while released on bail, or made any efforts to recapture defendant on receipt of notice of nonappearance and bail forfeiture, the fact of recapture constitutes a fulfillment of the surety’s objective obligation that defendant be produced in court, entitling the surety to some small remission. 172 N.J.L.J. 1201 State v. Dillard et al, etc., A-1867-02T1; Appellate Division; per curiam opinion; decided and approved for publication June 13, 2003. Before Judges Pressler, Ciancia and Hoens. On appeal from the Law Division, Camden County. [Sat below: Judge Thomas A. Brown Jr.] DDS No. 14-2-4002 In these bail forfeiture appeals, where there was an appalling lack of supervision prior to defendant’s failure to appear in court, the trial court did not give adequate consideration to those factors set forth in State v. Hyers that favor a greater amount of remission than was awarded; while a surety’s abdication of its obligation to supervise a defendant or to aggressively pursue him if he absconds should not be condoned and should be addressed by some amount of forfeiture, the aim is not to produce revenue for the county or state but to facilitate a viable bail system fair; the orders of the trial court, which forfeited all or most of the amount of bail involved in each case, are vacated. 172 N.J.L.J. 1203 State v. Clayton et al, etc., A-1334-01T3; Appellate Division; per curiam opinion; decided and approved for publication June 13, 2003. Before Judges Pressler, Ciancia and Hoens. On appeal from the Law Division, Camden County. [Sat below: Judge Thomas A. Brown Jr.] DDS No. 14-2-4000 Where the surety returned defendant over to the authorities, the trial judge did not have the authority to reinstate the original bail and release defendant again, secured only by the bond previously issued by the surety, without notice to the surety; beyond that, the surety’s initial prompt return of defendant and its timely motion for relief entitled it to the return of 100% of the bail posted. 172 N.J.L.J. 1204 CRIMINAL PRACTICE — Causation — Jury Instructions — Life Support — Vehicular Homicide State v. Pelham , A-26 September Term 2002; Supreme Court; opinion by LaVecchia, J.; decided June 19, 2003. On certification to the Appellate Division, 353 N.J. Super. 114 (App. Div. 2002). [Sat below: Judges Skillman, Wallace and Wells in the Appellate Division; Judge Hoffman in the Law Division.] DDS No. 14-1-4062 As a matter of law, removal of life support, which is a victim’s right and is thus foreseeable, is not a legally cognizable cause of death in New Jersey and, because it does not unexpectedly or in any extraordinary way break the chain of causation that a defendant initiated and that led to the need for life support, it may not constitute an independent intervening cause for purposes of lessening a criminal defendant’s liability; here, where the decedent died two hours after being removed from life support, five months after he sustained serious injuries when defendant, who was charged with driving under the influence, struck the back of his car, the trial court’s instruction, which, viewed in its entirety, told the jury that it could not consider the victim’s removal from life support as an intervening cause of death so long as the death was the natural result of defendant’s actions, was not the equivalent of directing a verdict on causation and was not impermissible; defendant’s conviction for vehicular homicide is reinstated. 172 N.J.L.J. 1316 CRIMINAL PRACTICE — CDS — Expert Testimony State v. Summers , A-1 September Term 2002; Supreme Court; opinion by Verniero, J.; dissent by Albin, J.; decided May 28, 2003. On appeal from the Appellate Division, 350 N.J. Super. 353 (App. Div. 2002). [Sat below: Judges Petrella, Kestin and Steinberg in the Appellate Division; Judge Connor in the Law Division.] DDS No. 14-1-3825 Here, where a jury convicted defendant of multiple drug charges, including possession and distribution of a CDS, the State’s expert witness, a police detective, did not intrude on the jury’s fact-finding role by expressing the view that the unnamed man in a hypothetical question asked by the prosecutor, which was modeled on the identical facts adduced at trial, had possessed the CDS for distribution and not for personal use; the Appellate Division majority correctly upheld defendant’s conviction, finding no violation of the standard in State v. Odom, 116 N.J. 65 (1989), for evaluating an expert’s testimony when such a question is presented — that the hypothetical was detailed in form did not itself render it impermissible under Odom, nor did the fact that it was declarative and embraced ultimate issues that the jury had to decide. 172 N.J.L.J. 778 CRIMINAL PRACTICE — CDS — Firearms — Possession State v. Morris , Ind. No. 1530-06-02; Law Division, Criminal Part, Hudson County; opinion by Schultz, J.S.C.; decided October 11, 2002; approved for publication April 7, 2003. DDS No. 14-3-3401 Based on the similar wording of the Graves Act and N.J.S.A. 2C:39-4.1a — which provides enhanced penalties for persons convicted of having possessed a firearm while committing certain offenses involving controlled dangerous substances — plus the Legislature’s lack of response to Stewart, and supporting interpretations in the relevant federal cases, the firearm must have been actually possessed or constructively possessed so that it may be actually possessed immediately; circumstantial evidence can be used to prove the required possession in such cases and, since there was “some” evidence on immediate accessibility before the grand jury, defendant’s motion to dismiss that count of the indictment is denied. 172 N.J.L.J. 241 CRIMINAL PRACTICE — CDS — Guns State v. Harrison, etc. , A-6901-99T4, A-0617-00T4; Appellate Division; opinion by Wecker, J.A.D.; decided and approved for publication March 27, 2003. Before Judges Wecker, Lisa and Fuentes. On appeal from the Law Division, Union County, 98-12-1824-I. [Sat below: Judge Barisonek.] DDS No. 14-2-3244 Here, where defendant was on the street outside his apartment house, when drugs, paraphenalia, and a gun were found inside his apartment, his conviction under N.J.S.A. 2C:39-4.1, for possession of a firearm while in possession of cocaine and marijuana with the intent to distribute, is affirmed; the statute does not require actual physical possession, and it is enough that defendant had the ability to control the drugs and the gun in his apartment; while some nexus is required between the drugs and the weapon, defendant had free access to both, the facts supporting constructive possession of the drugs and of the gun are the same, and the facts inferable by the jury from this evidence provide a sufficient nexus to establish the crime. 172 N.J.L.J. 80 CRIMINAL PRACTICE — CDS — Intent to Distribute — Prosecutors State v. Lopez, etc. , A-6503-00T4, A-2512-01T4; Appellate Division; opinion by Fuentes, J.A.D.; decided and approved for publication April 8, 2003. Before Judges King, Lisa and Fuentes. On appeal from the Law Division, Middlesex County, 00-2-214-I. [Sat below: Judge DeVesa.] DDS No. 14-2-3362 As a matter of law, the sharing of drugs by individuals in joint possession of the drugs does not constitute “intent to distribute” under N.J.S.A. 2C:35-5 and 2C:35-7; the prosecutor’s assertion to the jury that a finding of “intent to distribute” could be based on evidence of drug sharing between these two defendants was a material misstatement of law, and the trial court’s failure to correct it amounted to plain error, requiring reversal of defendants’ convictions for possession with intent to distribute. 172 N.J.L.J. 214 CRIMINAL PRACTICE — CDS — Jury Instructions — School Zones State v. White , A-983-01T4; Appellate Division; opinion by Cuff, J.A.D.; decided March 6, 2003; approved for publication June 4, 2003. Before Judges Skillman, Cuff and Winkelstein. On appeal from the Law Division, Ocean County, Indictment No. 00-10-1245. [Sat below: Judge Citta.] DDS No. 14-2-3045 Here, where defendant was arrested after police found 16 bags of marijuana in the ankleband of his sweatpants within 1,000 feet of a community center where the board of education operates an after-school homework club, the trial judge did not err in denying defendant’s motion for judgment on the charge of possession of CDS with intent to distribute within 1,000 feet of a school zone, since the State’s evidence was sufficient to allow a reasonable jury to find that the facility was operated for school purposes; however, since defendant disputed whether an objectively reasonable person could know that the property was used regularly, consistently, and actually for school purposes, the trial judge’s failure to instruct the jury to resolve that issue was reversible error, and defendant’s conviction is reversed and the matter remanded for a new trial. Since the injection of the concept of innocence in a jury charge may tend to reduce the State’s burden of proof, the use of the term “guilt or innocence” in a reasonable-doubt charge should be avoided. 172 N.J.L.J. 1106 CRIMINAL PRACTICE — CDS — License Plates — Motor Vehicles — Search and Seizure State in the Interest of D.K. , A-6037-01T4; Appellate Division; opinion by Payne, J.A.D.; decided and approved for publication May 1, 2003. Before Judges Havey, Rodriguez and Payne. On appeal from the Chancery Division, Family Part, Monmouth County, FJ-13-2827-02. DDS No. 14-2-3594 A tinted plastic cover over a rear license plate, temporarily rendering it partially unreadable, provides a sufficient basis for a police officer’s belief that N.J.S.A. 39:3-33 and 39:3-37 are being violated, and provided a reasonable and articulable basis for the motor vehicle stop here; the trial court correctly denied the motion of defendant-juvenile, a passenger in the car, to suppress the marijuana found in his mouth, as he attempted to eat it after the officer detected the odor of marijuana emanating from the driver’s side window, and his convictions for possession of marijuana and tampering with evidence are affirmed. 172 N.J.L.J. 479 CRIMINAL PRACTICE — Child Victims — Coaches — Evidence — Sexual Assault State v. Buscham , A-5035-00T5; Appellate Division; opinion by Wefing, J.A.D.; decided and approved for publication May 28, 2003. Before Judges Wefing, Wecker and Fuentes. On appeal from the Law Division, Cape May County, 00-06-00286-I. DDS No. 14-2-3827 Where defendant, a gymnastics coach, was tried for sexual assault against one of his students, who spoke to his high-school teacher and nurse about his relationship with defendant approximately a month after it had ended, although his report was made within a reasonable time, the extent of the nurse’s testimony far exceeded what should have been permitted under the fresh-complaint doctrine, and the conviction is reversed. Additionally, a coach can possess significant psychological or emotional power over a team member and, in appropriate circumstances, can be found to have supervisory or disciplinary power for purposes of determining if an aggravated sexual assault occurred under N.J.S.A. 2C:14-2a(2)(b); the evidence was ambiguous here, and on remand the jury must be told what factors to consider in resolving this issue (depending on the evidence presented, the jury may consider whether there was a significant disparity in ages and/or maturity level between the two, the role that the athletic activity played in the life of the victim, the extent, if any, to which defendant offered guidance and advice to the victim on questions and issues outside the athletic arena, and the power or ability of the coach to affect future athletic participation or success, as well as other factors that may be identified). 172 N.J.L.J. 994 CRIMINAL PRACTICE — Child Victims — Prosecutors — Sentencing State v. D.A.V. , A-130 September Term 2001; Supreme Court; per curiam opinion; concurrence by Albin, J.; certification to the Appellate Division, 348 N.J. Super. 107 (App. Div. 2002). [Sat below: Judges Stern, Eichen and Collester in the Appellate Division.] DDS No. 28-1-3829 Here, where defendant was convicted of endangering the welfare of a child after leaving her three children, aged eight and under, alone in a hot apartment that smelled of cat urine and feces, without an air conditioner and with only one fan when the outside temperature rose to 95 to 100 degrees, the prosecutor’s decision to prosecute her under N.J.S.A. 2C:24-4a, a second-degree crime, rather than under 9:6-3, a fourth-degree crime, will not be overturned; the selection of the charge rests in the sound discretion of the prosecutor, absent a showing that the exercise of discretion was arbitrary, capricious or otherwise constitutes a patent or gross abuse of discretion, which is not made here; nor did the court abuse its discretion in sentencing defendant to an eight-year term of imprisonment, one year higher than the presumptive term, here, where the aggravating factors — including defendant’s criminal history — outweighed the mitigating factors. 172 N.J.L.J. 778 CRIMINAL PRACTICE — Collateral Issues — Evidence — Income State v. Terrell , A-400-01T4; Appellate Division; opinion by Kestin, P.J.A.D.; decided and approved for publication April 10, 2003. Before Judges Kestin, Fall and Weissbard. On appeal from the Law Division, Criminal Part, Essex County, 99-7-2545-I. [Sat below: Judge Lombardi.] DDS No. 14-2-3382 The principle of State v. Mathis that, although “a lack of money is logically connected with a crime involving financial gain, it would prove too much against too many” was violated here by the question the prosecutor asked defendant’s only witness — a close friend — “does defendant have a job” and her use of the “no” answer in arguing to the jury “the forbidden theme that defendant had no apparent means of income and hence was likely to commit a crime for dollar gain”; the policies in Mathis are too important to be limited to questioning the defendant — introducing evidence on whether a defendant has a regular source of income is, when a collateral issue, prohibited in any form; considering how the testimony was used in summation, the trial court was incorrect in overruling defendant’s objection to the question but, even without the benefit of hindsight, the rule of Mathis should have been applied more faithfully and fully to preclude the question. This is not to hold that evidence of the money found on defendant’s person should have been kept from the jury, only that it was improper to fortify the inferences that might properly be drawn from it with defendant’s lack of employment; the prejudice he suffered as a result went to the heart of his convictions for possession of CDS with intent to distribute — in addition to violating Mathis, the argument also improperly shifted to defendant the burden of proving that the cash had a more innocent provenance — and his convictions for possession with intent to distribute must be reversed. 172 N.J.L.J. 213 CRIMINAL PRACTICE — Commitments — Sex Offenders In the Matter of the Commitment of G.D. , A-0146-01T2; Appellate Division; opinion by Lisa, J.A.D.; decided and approved for publication March 17, 2003. Before Judges King, Wefing and Lisa. On appeal from the Law Division, Essex County, SVP-105-00. [Sat below: Judge Perretti.] DDS No. 14-2-3140 Where the attorney general supplied its experts’ reports the date before the hearing to commit appellant to the Special Treatment Unit pursuant to the Sexually Violent Predator Act, since the lateness was not meant to gain a strategic advantage, and an additional one-day confinement resulting from a postponement would have been a minor inconvenience, the trial judge’s decision denying the motion to exclude the reports is affirmed; if late reports continue as a common problem, any perceived need for specific SVPA discovery rules should be addressed to the Civil Practice Committee. 172 N.J.L.J. 58 CRIMINAL PRACTICE — Confrontation Clause — Hearsay State v. Rivera , A-20 September Term 2002; Supreme Court; per curiam opinion; decided April 8, 2003. On certification to the Appellate Division, 351 N.J. Super. 93 (App. Div. 2002). [Sat below: Judges Coburn, Braithwaite, and Weissbard in the Appellate Division; Judge Connor in the Law Division.] DDS No. 14-1-3398 The Appellate Division’s judgment, affirmed here, reversed defendant’s conviction on drug charges on the ground that the statement made to police by a nontestifying accomplice at the time of his arrest, which was both self-inculpatory and inculpatory of defendant, was so inherently unreliable that allowing detectives to testify to it at defendant’s trial (forming a critical part of the State’s case) as an excited-utterance exception to the hearsay rule violated defendant’s right of confrontation; the matter was remanded for a new trial with the observation that, even if such statements meet the requirements of N.J.R.E. 803(c)(2), they are a special subcategory of hearsay and are so inherently suspect that they should not be evaluated on a case-by-case basis — they should not be admitted in a criminal trial at all. 172 N.J.L.J. 134 CRIMINAL PRACTICE — Constitutional Law — DWI — Jury Trials — Sentencing — Vehicular Homicide State v. Stanton , A-7 September Term 2001; Supreme Court; opinion by Coleman, J.; dissents by Long, Zazzali and Albin, JJ.; decided April 17, 2003. On certification to the Appellate Division, 339 N.J. Super. 1 (App. Div. 2001). [Sat below: Judges Pressler, Ciancia and Alley in the Appellate Division; Judge Alvarez in the Law Division.] DDS No. 14-1-3486 Here, where the State relied on intoxication and other evidence to establish that defendant had operated her car recklessly, and the jury found defendant guilty of vehicular homicide, and the judge found her guilty of driving while intoxicated without taking any additional evidence or testimony, which finding required a mandatory minimum three-year term pursuant to N.J.S.A. 2C:11-5b(1), the Appellate Division erred in vacating that parole-ineligibility term on the ground that the DWI issue should have been decided by the jury; there is no right to a trial by jury on DWI or on the issue of intoxication for sentence-enhancement purposes under N.J.S.A. 2C:11-5b(2), since that is not an element of vehicular homicide; substantial evidence supports the judge’s DWI finding and, since there is no constitutional doubt following Harris v. United States — which made clear that a fact that does not extend the sentence beyond the statutory maximum authorized by the jury’s verdict can be found by a judge — the ineligibility term is reinstated (to the extent that State v. Johnson can be read to suggest that jury trials are required on sentence-enhancement factors where there is no constitutional doubt, that suggestion is disavowed). 172 N.J.L.J. 313 CRIMINAL PRACTICE — Consular Relations State v. Jang , A-3883-99T4; Appellate Division; opinion by Carchman, J.A.D.; decided and approved for publication March 28, 2003. Before Judges Conley, Carchman and Parrillo. On appeal from the Law Division, Bergen County, Indictment No. S-1871-97-001. [Sat below: Judge Conte.] DDS No. 14-2-3265 Absent a showing of prejudice, a failure of the State to comply with the provisions of the Vienna Convention on Consular Relations and Optional Protocol on Disputes will not result in a reversal of a conviction; here, although defendant was not advised of his right to contact the Korean Consulate, he has not demonstrated that there was a likelihood that contact would have resulted in assistance to him, since the police had contacted the consulate and no aid was forthcoming, he voluntarily surrendered to police, received his Miranda rights in both English and Korean, was interviewed by the police in Korean, was cooperative, and ended both interviews by asserting his right to silence, and his convictions for, inter alia, murder, attempted murder, armed robbery and burglary are affirmed. 172 N.J.L.J. 81 CRIMINAL PRACTICE — De Bene Esse Depositions — Right of Confrontation State v. Benitez, etc. , A-5680-00T4, A-5636-00T4; Appellate Division; opinion by Braithwaite, J.A.D.; dissent by Parker, J.A.D.; decided and approved for publication May 7, 2003. Before Judges Braithwaite, Parker and Bilder. On appeal from the Law Division, Passaic County, Indictment No. 00-02-0160. [Sat below: Judge Reenstra.] DDS No. 14-2-3638 Rule 3:13-2 only allows the use of a de bene esse deposition where the witness is unable to appear in court to testify because of “death or physical or mental incapacity,” which ought to be established by medical proofs; here, where the victim was 94 years old and used a walker, but there was no medical evidence to support an inability to testify at trial because of physical or mental incapacity, the State failed to demonstrate that she was “literally unavailable,” and defendants’ right of confrontation was violated when the trial judge permitted her to testify by way of a videotaped deposition pursuant to Rule 3:13-2, particularly since, when she had appeared at the courthouse to give her deposition four days before trial, she was alert, demonstrative, and responsive, thus demonstrating that she was perfectly fit to testify, despite her reluctance to do so; defendants’ convictions for robbery, criminal restraint, theft, and burglary are reversed and the matter is remanded for retrial. 172 N.J.L.J. 503 CRIMINAL PRACTICE — Double Jeopardy — Drunk Driving — Evidence — Trials de Novo State v. Kashi , A-3319-01T2; Appellate Division; opinion by Wefing, J.A.D.; decided and approved for publication June 5, 2003. Before Judges King, Wefing and Lisa. On appeal from the Law Division, Middlesex County, 113-2001. [Sat below: Judge Paley.] DDS No. 14-2-3906 A defendant may be found guilty of driving while intoxicated based on either his physical condition or his blood-alcohol level and here, where the municipal court judge found that the results of the roadside physical tests the trooper administered were not sufficient to prove beyond a reasonable doubt that defendant had been driving while intoxicated, and instead found him guilty on the basis of the two breathalyzer tests, there was no violation of double jeopardy when the Law Division judge, after a trial de novo on the record, found defendant guilty based on both the roadside tests and the breathalyzer results — that the municipal court judge rejected the results of the roadside tests did not “acquit” defendant of anything and did not preclude the Law Division judge from making his own assessment of the sufficiency of the evidence, and although the trooper’s testimony establishes that he did not follow the proper procedure in administering the tests, which precludes a determination beyond a reasonable doubt that the results were accurate, defendant’s conviction is affirmed based on the roadside tests. 172 N.J.L.J. 1095 CRIMINAL PRACTICE — Drunk Driving — Search and Seizure State v. Nikola , A-3775-01T3; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication April 29, 2003. Before Judges Skillman, Cuff and Winkelstein. On appeal from the Law Division, Sussex County, Municipal Appeal No. 5-3-01. [Sat below: Judge Conforti.] DDS No. 14-2-3568 Where the police received information from another driver that defendant had almost caused a collision, the police officer arrived at defendant’s home a minute after she did and observed defendant standing at the entrance to her garage with the garage door open, the officer smelled an odor of alcohol and observed that defendant’s eyes were bloodshot and watery, and defendant was unable to recite the alphabet, the officer had probable cause to believe that defendant had been driving while under the influence of alcohol; by temporarily detaining her outside of the garage, the officer had already “seized” defendant before following her into the garage when she went to retrieve her driving credentials and, therefore, he was not required to obtain a warrant before entering the garage to complete his investigation and place defendant under arrest. 172 N.J.L.J. 413 CRIMINAL PRACTICE — Evidence — Prior Statements — Video Testimony State v. Muhammad , A-5427-99T4; Appellate Division; opinion by Lisa, J.A.D.; decided and approved for publication April 8, 2003. Before Judges Wefing, Lisa and Fuentes. On appeal from the Law Division, Atlantic County, 98-10-2525-I. [Sat below: Judge Connor.] DDS No. 14-2-3385 There is no reason why the practice in Condella v. Cumberland Farms, Inc., of giving the trial judge discretion to determine whether to permit video playback of a witness’ courtroom testimony should be barred in criminal trials, and there was no error in allowing the prosecutor to replay testimony during her summation; although a trial judge should give a cautionary instruction informing the jury that it is their function and obligation to determine the facts based on its recollection of all of the evidence, and that they should not place any extra emphasis on portions of testimony played back, the failure of the trial judge to give such a charge here does not constitute plain error based on the judge’s overall instructions. There is no mandatory temporal requirement in N.J.R.E. 803(a)(2), permitting the prior consistent statements offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive; whether a statement was made before the asserted motive or influence to fabricate is a substantial factor in determining relevance, but is not absolutely controlling; there was no abuse of discretion in admitting the witness’ prior statement, which was made after the witness entered into an agreement with the prosecutor. 172 N.J.L.J. 222 CRIMINAL PRACTICE — Family Law — Harassment State v. Walsh , A-3624-01T3; Appellate Division; opinion by Stern, P.J.A.D.; decided and approved for publication May 9, 2003. Before Judges Stern, Coburn and Collester. On appeal from the Law Division, Morris County, Docket No. 01-018. [Sat below: Judge Langlois.] DDS No. 14-2-3660 The argument between a father and his unemancipated 18-year-old daughter regarding finances and his threatening to take away the car she used and other privileges, which resulted in her leaving his house and his driving off in her car, leaving her stranded outside, would not warrant a final restraining order based on harassment were this a domestic-violence case, and it will not support a conviction on a trial de novo in the Law Division under N.J.S.A. 2C:33-4(a) for harassment; such arguments occur frequently in many families and here, where the daughter filed the complaint on the recommendation of one of her mother’s matrimonial attorneys, it is one that would not have been pursued but for the ongoing acrimonious matrimonial dispute, and defendant’s petty disorderly persons conviction is reversed. 172 N.J.L.J. 583 CRIMINAL PRACTICE — Grand Juries — Testifying in Restraints State v. Grant , A-2829-02T2; Appellate Division; opinion by Weissbard, J.A.D.; decided and approved for publication on June 25, 2003. Before Judges Kestin, Fall and Weissbard. On appeal from the Law Division, Monmouth County, 02-6-1160-I. [Sat below: Judge Farren.] DDS No. 14-2-4118 Here, where the assistant prosecutor agreed to permit defendant, arrested for murder, to testify before the grand jury in civilian clothes and without restraints, but the Sheriff’s Officer refused to remove his handcuffs and leg shackles solely because of the nature of the charges, and the judge declined to enforce his earlier order that defendant be permitted to testify without restraints, the indictment is dismissed and the matter is remanded for re-presentation to the grand jury, since defendant was deprived of a significant right created by the agreement between his counsel and the assistant prosecutor; defendant should not have been compelled to forfeit the opportunity to present his viable self-defense claim or risk the prejudice inherent in appearing in restraints unless there were no alternatives, and the judge erred in abdicating his role as the arbiter of the compelling interests involved — security versus defendant’s wish, with the State’s agreement, to testify — and failing to immediately convene a hearing to determine if law enforcement’s legitimate security concerns could be met while minimizing prejudice to defendant; on remand, the judge will first determine what physical restraints, if any, are necessary and, if so, how it can be done as unobtrusively as possible. 172 N.J.L.J. 1314 CRIMINAL PRACTICE — Independent-Source Rule — Search and Seizure State v. Holland , A-150 September Term 2001; Supreme Court; opinion by Verniero, J.; decided June 3, 2003. On certification to the Appellate Division. DDS No. 14-1-3880 Whenever the State seeks to justify a search under the independent-source rule, it must (1) demonstrate that probable cause existed to conduct the challenged search, without the unlawfully obtained information, by relying on factors wholly independent from the information acquired as a result of the prior illegal search, (2) demonstrate by clear and convincing proof that the police would have sought a warrant without the tainted knowledge or evidence that they had previously acquired or viewed, and (3) regardless of the strength of their proofs under the first two prongs, prosecutors must demonstrate by the same enhanced standard that the initial impermissible search was not the product of flagrant police misconduct; courts must scrupulously apply each part of this test and the government’s failure to satisfy any one prong will result in suppression of the challenged evidence. Here, where, after smelling the odor of burning marijuana, the police knocked at the front door and announced their presence, saw defendant flee out the back and drop what appeared to be a bud of marijuana, and then entered the residence when told that there were other occupants, where they observed in plain view drug paraphernalia and two growing rooms, and they then applied for a warrant and conducted a search pursuant to that warrant, seizing the paraphernalia and marijuana previously observed, the fruits of the search must be suppressed because, applying the clear and convincing standard, it cannot be concluded that the information acquired by the police wholly apart from the impermissible search would have prompted them to secure a warrant; when a search involves an illegal entry into one’s dwelling, that fact is relevant to the analysis, and the fact that the police conduct occurred in defendant’s residence fortifies the holding that the independent-source rule cannot sustain what otherwise was an impermissible search. 172 N.J.L.J. 971 CRIMINAL PRACTICE — Juries State v. Tyler , A-125 September Term 2001; Supreme Court; opinion by Coleman, J.; decided May 13, 2003. On certification to the Appellate Division. DDS No. 14-1-3677 Where the juror sought to speak to the trial court before a second panel of prospective jurors was brought in, but the court refused to hear her, and after the jury had been sworn, but before the trial began, she advised the court that she could not have an unbiased opinion on the case, the trial court failed to perform its gatekeeping role and erred in sanctioning her by having her serve for one day because the court believed she was trying to avoid jury duty; the trial judge could either have brought the juror to sidebar after she initially requested to speak to the judge before a second panel of prospective jurors was brought in, which would have allowed defendant to have exercised a peremptory challenge if the judge decided not to excuse her, or the trial judge could have excused the juror under R. 1:8-3(d) after the jury was sworn; further, any finding of contempt must be vacated because the juror had sought to speak to the judge before the second panel was brought in; the conviction is reversed and the matter is remanded for a new trial. 172 N.J.L.J. 569 CRIMINAL PRACTICE — Juries — Police — Prosecutors — Witnesses State v. Morais , A-4320-00T2; Appellate Division; opinion by Parker, J.A.D.; decided and approved for publication April 1, 2003. Before Judges Braithwaite, Parker and Bilder. On appeal from the Law Division, Essex County, Indictment No. 00-5-1217. [Sat below: Judge Merkelbach.] DDS No. 14-2-3293 Although it is improper for an attorney to refer to a juror individually by name, experience or background, where the prosecutor did not refer to a specific juror by name but commented during summation that someone on the jury was married to a police officer and the trial judge immediately told the jury to draw from their personal experiences and common sense in judging the credibility of the police officers, the prosecutor’s reference was harmless; also, while there are numerous cases referring to the impropriety of prosecutors’ referring to the credibility of police officers, those cases all involve officers testifying for the state, rather than for the defense, as in this case where defendants are police officers, and the prosecutor’s reference to a “blue wall” (i.e., a police officer’s reluctance to incriminate fellow officers) was fair comment under the circumstances. 172 N.J.L.J. 82 CRIMINAL PRACTICE — Jury Instructions — Perjury — Prosecutors State v. Neal , A-5548-99T4; Appellate Division; opinion by Conley, J.A.D.; decided and approved for publication June 16, 2003. Before Judges Conley, Carchman and Parrillo. On appeal from the Law Division, Monmouth County, Ind. No. 98-06-1222. [Sat below: Judge DeStefano.] DDS No. 14-2-4020 Defendant’s conviction for perjury, in connection with his testimony before the grand jury investigating misuse of credit cards and improper expenses by members of the Asbury Park Board of Education, is reversed, since the prosecutor exceeded the bounds of acceptable advocacy in his summation when he cast aspersions on defendant for calling character witnesses, expressed his personal opinion regarding defendant’s guilt, and asked the jury to hold defendant accountable for his “betrayal of the children of Asbury Park,” which comments were inflammatory, improper, and had the capacity to deprive defendant of a fair trial. False testimony will be deemed material for a perjury conviction whenever it tends directly or circumstantially to prove the central matters in issue or if it establishes or disproves matters which themselves bear crucially on the central issues; if the alleged falsehoods are of collateral issues, the materiality requirement may be met by testimony relating to a collateral matter that, if believed, has the capacity to affect the weight or force of the evidence bearing on an ultimate issue and thus has the capacity to influence the tribunal hearing the proceeding; here, although the evidence that allowed the jury to evaluate the materiality of defendant’s alleged falsehoods was not extensive, it was sufficient to prove materiality, since defendant’s statements related directly to the grand jury’s inquiry; however, the judge erred when charging the jury on materiality by including language that in essence told the jurors that materiality can mean whatever their common sense tells them it means, and such language should not be included as part of the materiality instructions on remand. 172 N.J.L.J. 1199 CRIMINAL PRACTICE — Juveniles — Paintball Guns — Weapons State in the Interest of G.C. , A-3161-01T3; Appellate Division; opinion by Newman, J.A.D.; decided and approved for publication April 11, 2003. Before Judges Newman, Carchman and Parrillo. On appeal from the Chancery Division, Family Part, Middlesex County, FJ-0570-02. DDS No. 14-2-3399 Even if a paintball gun qualifies as a weapon under N.J.S.A. 2C:39-1r because it has the capacity, albeit in a limited way, of inflicting serious bodily injury, it is not a firearm, and the offense of unlawful possession of a weapon is only committed if the object was possessed in “circumstances not manifestly appropriate for such lawful uses” it may have; here, where the juvenile shot a paintball gun at a car, there was a total absence of a likely threat of harm to others, a key ingredient that binds the first and third elements of the offense to sustain his conviction under 2C:39-5d, and thus there was no factual basis for accepting his plea of guilty (although there may be a basis for sustaining a conviction for the disorderly person offense of criminal mischief). 172 N.J.L.J. 218 CRIMINAL PRACTICE — Krol Commitments I/M/O the Commitment of D.S. , CASC 117-84; Law Division, Criminal Part, Camden County; opinion by Cook, J.S.C.; decided December 13, 2002; approved for publication March 19, 2003. DDS No. 14-3-3219 Neither the aggravating and mitigating factors in N.J.S.A. 2C:44-1a and b or the presumptive prison sentences of 2C:44-1f should be considered in determining the maximum period that a person acquitted of a crime by reason of insanity may remain committed on Krol status. 172 N.J.L.J. 57 CRIMINAL PRACTICE — Plea Agreements — Sexually Violent Predators State v. Mumin , A-5524-00T4; Appellate Division; opinion by Winkelstein, J.A.D.; decided January 9, 2003; approved for publication May 30, 2003. Before Judges Skillman, Cuff and Winkelstein. On appeal from the Law Division, Atlantic County, 99-11-2217. [Sat below: Judge Isman.] DDS No. 14-2-3984 Civil commitment under the Sexually Violent Predators Act is not a penal consequence of a guilty plea to an underlying predicate offense, but a collateral consequence, and a trial judge is not required to inform a defendant of his possible future commitment under the Act before he enters a guilty plea; the trial court’s denial of the motion of defendant, who pleaded guilty to criminal sexual contact without being advised of the possible commitment under the Act, to withdraw his plea is affirmed. 172 N.J.L.J. 1173 CRIMINAL PRACTICE — Prison Discipline Balagun v. Department of Corrections , A-2838-01T1; Appellate Division; per curiam opinion; decided and approved for publication June 13, 2003. Before Judges Cuff, Lefelt and Winkelstein. On appeal from a final decision of the New Jersey Department of Corrections. DDS No. 13-2-3991 The administrative decision finding plaintiff-inmate guilty of possessing materials relating to a security threat group is reversed, and the matter is remanded for a new hearing at which the hearing officer must determine whether any of the material relied on had been the subject of plaintiff’s previous disciplinary hearing for the same offense, and, if so, it cannot be used to justify additional sanctions but should remain confiscated; if all or some of the material is new, the hearing officer shall determine whether it is gang related and, if so, shall make proper findings and conclusions explaining why he concluded that that material is gang related — it is insufficient merely to list by category the evidence that was considered. 172 N.J.L.J. 1197 CRIMINAL PRACTICE — Sexual Assault State v. Maxwell , A-2113-01T5; Appellate Division; per curiam opinion; decided and approved for publication June 24, 2003. Before Judges Stern, Coburn and Collester. On appeal from the Law Division, Passaic County, Ind. No. 99-11-1086-I. [Sat below: Judge Clark.] DDS No. 14-2-4102 N.J.S.A. 2C:14-2(a)(1), which prohibits “sexual penetration” with a victim who is less than 13, applies to one who instructs another to perform an act of sexual penetration on herself, and is not unconstitutionally vague; the denial of defendant’s motion to dismiss these counts of aggravated sexual assault based on instructing the victim, over the phone, to perform such an act is affirmed. 172 N.J.L.J. 1285 DAMAGES (see EMPLOYMENT LAW, TORTS) DE BENE ESSE DEPOSITIONS (see CRIMINAL PRACTICE) DEBT LIMITATIONS (see GOVERNMENT) DEED RESTRICTIONS (see REAL PROPERTY) DEEMER STATUTE (see INSURANCE LAW) DELAY DAMAGES (see LAND USE and PLANNING) DELIVERY PERSONS (see TORTS) DISABILITIES BENEFITS (see GOVERNMENT) DISCOVERY (see CIVIL PRACTICE, LEGAL PROFESSION) DISCOVERY MISREPRESENTATION (see CONSUMER PROTECTION) DISCRIMINATION (see EMPLOYMENT LAW) DISHONORED CHECKS (see CREDITORS’ and DEBTORS’ RIGHTS) DIVORCE (see TORTS) DOCTRINE OF FUTILITY (see ADMINISTRATIVE LAW) DOG BITES (see TORTS) DOUBLE JEOPARDY (see CRIMINAL PRACTICE) DRUNK DRIVING (see CRIMINAL PRACTICE) DUE DILIGENCE (see CIVIL PRACTICE) DUE PROCESS (see ADMINISTRATIVE LAW) DWI (see CRIMINAL PRACTICE) EMERGENCY MEDICAL TECHNICIANS (see TORTS) EMINENT DOMAIN (see LAND USE and PLANNING) EMOTIONAL DISTRESS (see EMPLOYMENT LAW) EMPLOYMENT LAW — Affirmative Defenses — Discrimination — Hostile Work Environment — Supervisors Entrot v. The BASF Corporation et al , A-2211-01T5; Appellate Division; opinion by Weissbard, P.J.A.D.; decided and approved for publication April 7, 2003. Before Judges Kestin, Fall and Weissbard. On appeal from the Law Division, Morris County, L-1324-99. [Sat below: Judge Langlois.] DDS No. 25-2-3334 The test of whether an allegedly offending employee is a “supervisor,” for the purpose of deciding a claim of hostile work environment under the Law Against Discrimination, should be whether he was reasonably perceived by the victim, accurately or not, as having the power to adversely affect the victim’s working life — the power to fire and demote, influence compensation, and direct all job functions would be relevant factors, as well as to control the workplace in subtler and more indirect ways so to restrict the victim-employee’s freedom to ignore sexually harassing conduct; here, given the deposition testimony of plaintiff and two other employees, the trial judge erred in concluding, based only on the deposition testimony of the alleged harasser, that he was not plaintiff’s supervisor and in granting summary judgment for defendant after inappropriately weighing the evidence and deciding a key factor while ignoring significant testimony favorable to plaintiff. The trial judge also erred in concluding that plaintiff failed to meet the proof standard for holding defendant-employer vicariously liable for the alleged sexual harassment by defendant-employee under Lehmann v. Toys ‘R’ Us, Inc., since the evidence presented disputed fact questions regarding the delegation of authority to the employee, his exercise of that authority, the resultant creation of a hostile environment, and whether the hostile environment was aided by the employer’s delegation of authority. “Constructive discharge” resulting from the sexually harassing conduct of a supervisor qualifies as a tangible employment action and will deprive an employer of the Ellerth/Faragher affirmative defense that the plaintiff failed to use the employer’s sexual-harassment complaint procedure; if, on remand, plaintiff proves that defendant-employee was her supervisor, and that defendant-employer is vicariously liable for the harassment, and that she was constructively discharged based on that harassment, the defense will not be available and her employer will be liable. 172 N.J.L.J. 155 EMPLOYMENT LAW — Age Discrimination — Contracts Rubin v. Forest S. Chilton, 3rd, Memorial Hospital , A-3783-01T5; Appellate Division; opinion by Bilder, J.A.D. (retired and temporarily assigned on recall); decided and approved for publication April 1, 2003. Before Judges Braithwaite, Parker and Bilder. On appeal from the Law Division, Bergen County, L-872-99. [Sat below: Judge Boggia.] DDS No. 22-2-3286 The trial judge correctly determined that plaintiffs, physicians who supplied pathology services to defendant-hospital pursuant to a written contract, were independent contractors; however, he erred in concluding that, as such, they were not protected by the Law Against Discrimination and in dismissing their claim that their contract had been terminated because of their ages, since N.J.S.A. 10:5-121, which prohibits refusals to do business with persons because of a protected characteristic, is applicable — to distinguish between a refusal to enter into a contract and the termination of a contract where the motivation is illegal discrimination would mock the beneficial goals of the LAD, which is to be liberally construed. 172 N.J.L.J. 82 EMPLOYMENT LAW — CEPA — Restrictive Covenants Maw v. Advanced Clinical Communications, Inc. et al , A-3606-01T3; Appellate Division; opinion by Winkelstein, J.A.D.; dissent by Cuff, J.A.D.; decided and approved for publication April 16, 2003. Before Judges Cuff, Lefelt and Winkelstein. On appeal from the Law Division, Mercer County. [Sat below: Judge Sapp-Peterson.] DDS No. 25-2-3444 New Jersey’s strong prohibition against restraint of trade, and against unduly burdening employees by restricting their right to engage in their chosen field of employment, establishes the public policy necessary to support a Conscientious Employee Protection Act and Pierce common-law cause of action based on an employee’s refusal to sign a noncompete clause, and the dismissal of plaintiff’s complaint for wrongful discharge is reversed; additionally, there is no reason to require an employee with a reasonable belief that a noncompete clause violates public policy to have to wait until she leaves her employment to have her rights adjudicated; also, individual liability may be imposed under CEPA, and the dismissal of the complaint in so far as it alleged a cause of action against the employer’s president is also reversed; finally, before electing between bringing an action under common law or under CEPA, a plaintiff should have an opportunity to complete discovery, and plaintiff’s common-law claim is reinstated. 172 N.J.L.J. 333 EMPLOYMENT LAW — Damages — Discrimination — Emotional Distress Tarr v. Bob Ciasulli’s Mack Auto Mall Inc. , A-122-01T3; Appellate Division; opinion by Pressler, P.J.A.D.; decided and approved for publication May 19, 2003. Before Judges Pressler, Axelrad and Hoens. On appeal from the Law Division, Ocean County, L-986-98. [Sat below: Judge Ford.] DDS No. 25-2-3718 Where plaintiff testified only to her acute embarrassment and humiliation as a result of the sexual harassment she suffered at her job, the trial judge erred in holding that emotional distress is compensable only if it causes discrete physical symptoms of illness or diagnosable psychological sequelae, and that temporary emotional distress is not compensable; plaintiff’s claim is not based on negligence or intentional infliction of emotional distress but on the violation of her civil rights, and her proofs were sufficient to permit the jury to award her compensatory damages for her intense humiliation and embarrassment; the order dismissing her claim of emotional distress is reversed. 172 N.J.L.J. 787 EMPLOYMENT LAW — Discrimination — Equity — Laches — Limitations of Actions Mancini v. Township of Teaneck et al , A-2186-00T5; Appellate Division; opinion by Axelrad, J.T.C. (temporarily assigned); decided and approved for publication May 28, 2003. Before Judges Newman and Axelrad. On appeal from the Law Division, Bergen County, L-5491-96. [Sat below: Judge Walsh.] DDS No. 25-2-3813 In this action under the Law Against Discrimination, where defendants had asserted laches as an affirmative defense but at trial relied on the statute of limitations, even if defendants abandoned the equitable defense of laches, they are still focusing on the 15-year period between the first discriminatory incident and the filing of the officer’s complaint in arguing that there was an unreasonable delay, which has already been rejected in connection with the statute-of-limitations issue; additionally, there is no showing of prejudice to defendants, and the equities weigh in favor of upholding the officer’s right to present evidence of defendants’ continuing discriminatory and retaliatory course of conduct from the inception of her employment. 172 N.J.L.J. 786 EMPLOYMENT LAW — Unemployment Compensation Darby v. Board of Review , A-2075-01T3; Appellate Division; opinion by Stern, P.J.A.D.; decided and approved for publication April 22, 2003. Before Judges Stern, Coburn and Alley. On appeal from the Board of Review, Department of Labor, Docket No. 01-B-04245-000-XO. DDS No. 25-2-3495 There is no basis for disturbing the Board of Review’s determination, based on N.J.A.C. 12:17-8.8(a), that claimant is not entitled to unemployment benefits in these circumstances; the system was not designed to benefit those who, though formally being paid for work previously performed or for “past services,” are continued on “active payroll status” although no longer working for the employer, and receive their same pay and benefits for the period required for achieving a vested pension. 172 N.J.L.J. 332 ENVIRONMENTAL LAW (see INSURANCE LAW) ENVIRONMENTAL POLLUTION (see INSURANCE LAW) EQUITABLE DISTRIBUTION (see FAMILY LAW) EQUITABLE ESTOPPEL (see CIVIL PRACTICE, FAMILY LAW) EQUITY (see EMPLOYMENT LAW) EVICTION (see REAL PROPERTY) EVIDENCE (see also CRIMINAL PRACTICE, TORTS) EVIDENCE — Evidentiary Summaries — Medical Malpractice — Nurses Heinzerling v. Goldfarb , MER-L-1884-99; Law Division, Mercer County; opinion by Sabatino, J.S.C.; decided May 9, 2002; approved for publication March 14, 2003. DDS No. 29-3-3216 Evidence Rule 1006 should be construed to permit evidential summaries in testimonial form as well as in a written document, and in this action alleging that defendant-medical providers failed, inter alia, to diagnose decedent’s lung cancer sooner, defendants’ in limine motion to bar the testimony of a registered nurse who had reviewed and summarized decedent’s medical records, offered by plaintiffs to explain in more understandable terms her symptoms and treatment, is denied; her testimony is admissible under Rule 1006 as a primary-evidence summary or, should plaintiffs call as witnesses each of the physicians who participated in decedent’s care, as a secondary-evidence summary designed to accompany the admission of those proofs here, where the medical records are voluminous and largely technical, cannot be conveniently examined and understood by a lay jury, and the nurse is qualified to render a summary — provided, however, that her testimony must be fair and balanced; defendants’ motion is denied without prejudice to defense counsel’s right to interpose appropriate objections to specific questions or answers. 172 N.J.L.J. 160 EVIDENTIARY SUMMARIES (see EVIDENCE) EXAMINATIONS (see GOVERNMENT) EXHAUSTION OF REMEDIES (see ADMINISTRATIVE LAW) EXPERT TESTIMONY (see CRIMINAL PRACTICE) EXPUNGEMENT (see CRIMINAL PRACTICE) EXTENSIONS OF TIME (see CIVIL PRACTICE) FAMILY LAW (see also CRIMINAL PRACTICE) FAMILY LAW — Alimony — Attorneys’ Fees — Equitable Estoppel — Laches — Waiver Clarke v. Clarke , A-1900-01T3; Appellate Division; opinion by Wallace, J.A.D.; decided and approved for publication April 25, 2003. Before Judges Pressler, Wallace and Hoens. On appeal from the Chancery Division, Family Part, Union County, M-4889-74. [Sat below: Judge Cassidy.] DDS No. 20-2-3523 Here, where the parties were divorced in 1976 and plaintiff-wife was awarded alimony in addition to equitable distribution, but defendant-husband thereafter consistently failed to comply with the court orders and left the state and, frequently, the country, and kept his whereabouts secret, the decision of the motion judge to award plaintiff alimony arrearages plus interest is affirmed for the reasons expressed below; it is noted that, although plaintiff filed no enforcement actions between 1978 and 2001, laches does not bar her claim since, under the circumstances, there was ample justification for the delay and there is no evidence that defendant had changed his position or was prejudiced by the delay; there is no evidence that she had waived her claim, nor is she equitably estopped from asserting it since there is no evidence that defendant relied on her inaction and it was he who acted in bad faith; however, the award of attorneys’ fees is reversed and the matter is remanded for reconsideration in light of the judge’s failure to address the factors in Rule 5:3-5(c) or make the required findings of fact and conclusions of law. 172 N.J.L.J. 392 FAMILY LAW — Alimony — Marital Lifestyle Weishaus v. Weishaus , A-6646-00T5; Appellate Division; opinion by Fuentes, J.A.D.; decided and approved for publication May 20, 2003. Before Judges Wefing, Wecker and Fuentes. On appeal from the Chancery Division, Family Part, Bergen County, FM-02-2985-00. [Sat below: Judge Torack.] DDS No. 20-2-3730 It was the trial court’s failure, at the time of issuing the divorce decree, to have determined the parties’ marital lifestyle that the Supreme Court objected to in Crews, and the trial court here correctly rejected a settlement that sought to frustrate this nondeferrable judicial responsibility; however, the court improperly extrapolated the marital lifestyle based on defendant-husband’s current earnings, since that judicial determination must be based on evidence detailing the parties’ actual standard of living during the marriage, whether supported exclusively by the their earnings or supplemented by, e.g. (as here), the liquidation of assets and gifts — it is not for the court to determine a sensible lifestyle based only on actual earnings, which become relevant only in arriving at an appropriate support figure. 172 N.J.L.J. 669 FAMILY LAW — Alimony — Property Settlements — Wills Wellington v. Estate of Thomas D. Wellington et al , A-5309-01T3; Appellate Division; opinion by Petrella, P.J.A.D.; decided and approved for publication April 22, 2003. Before Judges Petrella, Lintner and Bilder. On appeal from the Chancery Division, Family Part, Mercer County, FD-471-02. [Sat below: Judge Blackburn.] DDS No. 20-2-3492 Where the property-settlement agreement, entered into between plaintiff and decedent under New York law, provided for support payments and a bequest to plaintiff on decedent’s death, the trial judge properly determined that under New York law the property-settlement agreement encompassed all of plaintiff’s claims against the estate, and the dismissal of plaintiff’s claim against the estate for continued support payments is affirmed. 172 N.J.L.J. 338 FAMILY LAW — Child Abuse — Termination of Parental Rights D.Y.F.S. v. A.R.G. , A-25-02T4; Appellate Division; opinion by Fall, J.A.D.; dissent by Eichen, J.A.D.; decided and approved for publication June 5, 2003. Before Judges Kestin, Eichen and Fall. On appeal from the Chancery Division, Family Part, Hudson County, FN-09-350-02. DDS No. 28-2-3901 The finding of “aggravated circumstances of abuse, neglect, cruelty or abandonment” in N.J.S.A. 30:4C-11.3(a), which excuses the New Jersey Division of Youth and Family Services from its statutory obligation under 30:4C-11.1(b) to exert “reasonable efforts” to reunify a child with his or her parent, requires that the nature of the abuse or neglect must have been so severe or repetitive that to attempt reunification would jeopardize and compromise the safety of the child and would place the child in a position of an unreasonable risk of being abused again; here, the proofs presented to the Family Part support the finding that the father subjected his son to aggravated circumstances of abuse, neglect, cruelty or abandonment, and the orders denying his motion for reconsideration and approving the plan to terminate A.R.G.’s parental rights, are affirmed. 172 N.J.L.J. 1073 FAMILY LAW — Child Support — Parentage — Relief from Judgments F.B. v. A.L.G. , A-6 September Term 2002; Supreme Court; opinion by LaVecchia, J.; decided May 14, 2003. On certification to the Appellate Division, 350 N.J. Super. 389 (App. Div. 2002). [Sat below: Judges Kestin, Steinberg and Alley in the Appellate Division.] DDS No. 20-1-3684 In the absence of proof of fraud, the trial court correctly denied defendant relief from the judicial order of support entered against him four years earlier in a proceeding in which he participated and affirmatively acknowledged paternal responsibility for the child; the Appellate Division’s introduction at this stage of the proceeding of a “bright-line” requirement of continuing co-habitation with the mother of the child for an in loco parentis relationship is a distortion of that principle and would divert attention from the proper standard for relief from a prior judgment. 172 N.J.L.J. 565 FAMILY LAW — Cohabitation — Pendente Lite Spousal Support Rose v. Csapo , FM-03-635-02 W; Chancery Division, Family Part, Burlington County; opinion by Millard, J.S.C.; decided April 26, 2002; approved for publication March 14, 2003. DDS No. 20-4-3179 A dependent spouse’s cohabitation with her paramour, while the divorce litigation is still pending, terminates the supporting spouse’s obligation to pay pendente lite spousal support. 172 N.J.L.J. 50 FAMILY LAW — Equitable Distribution — Pensions Claffey v. Claffey , A-6632-00T2; Appellate Division; opinion by Fall, J.A.D.; decided and approved for publication May 19, 2003. Before Judges Kestin, Fall and Weissbard. On appeal from the Chancery Division, Family Part, Monmouth County, FM-13-466-99-B. [Sat below: Judge Iadanza.] DDS No. 20-2-3715 In this appeal where plaintiff challenges the provisions of the judgment of divorce intended to provide, as part of equitable distribution, security for the potential termination of her deferred-distribution share of defendant’s defined-benefit pension plan where there are no available survivor benefits, no assets to effect a present-offset value distribution and defendant has a significant alimony obligation to her, the trial judge properly recognized the interrelationship between equitable distribution and alimony, that if defendant were to predecease plaintiff either before or after his retirement, both the alimony and pension benefit would end, and that under N.J.S.A. 2A:34-25 life insurance is available to secure support in that event; however, the method employed to provide that security was improperly tied to plaintiff’s interest in the present actuarial value of defendant’s pension, because that interest reflects a future interest discounted to present dollars and is otherwise irrelevant in this distributive scheme, and the matter is remanded to the trial court to determine an equitable amount of life insurance coverage to be required as security, after considering such factors as each party’s income capacity, plaintiff’s life expectancy, defendant’s eligible and mandatory retirement dates, plaintiff’s entitlement to and the potential modification of the alimony award at the time of defendant’s retirement, the eventual receipt of Social Security, the parties’ financial circumstances and other relevant information. 172 N.J.L.J. 674 Faulkner v. Faulkner, A-1698-01T2; Appellate Division; opinion by Wefing, J.A.D.; decided and approved for publication June 11, 2003. Before Judges King, Wefing and Lisa. On appeal from the Chancery Division, Family Part, Bergen County, FM-02-1673-00. [Sat below: Judge Torack.] DDS No. 20-2-3956 The use of a coverture fraction does not apply were the enhanced value of the employed spouse’s pension is solely the result of employment prior to the marriage — the critical factor in deciding to apply the coverture fraction is when the employment commenced, not how long it lasted; here, where defendant received additional pension benefits based on his years of employment prior to the marriage, the trial court’s finding that plaintiff was only entitled to share in the value of the pension based on what defendant would have received if he had retired without those additional years of premarital employment is affirmed. 172 N.J.L.J. 1106 FAMILY LAW — Jurisdiction — Termination of Parental Rights Division of Youth and Family Services v. M.Y.J.P. and J.R.A. , A-3402-01T4, A-3875-01T4; Appellate Division; opinion by Kestin, J.A.D.; decided and approved for publication May 27, 2003. Before Judges Kestin, Eichen and Fall. On appeal from the Chancery Division, Family Part, Mercer County, FG-11-41-98. [Sat below: Judge Council.] DDS No. 28-2-3803 Given the state’s well-established commitment to protecting the welfare of children residing here, not only did the child’s presence in New Jersey since 1994 confer subject-matter jurisdiction over questions bearing on his welfare, including the parent-child relationship, but his mother’s acceding initially to the child’s removal from Haiti to New Jersey, requesting that the child remain here under the care of DYFS, and failing to demand his return to Haiti, subjected her parental status to the state’s jurisdiction under the status exception to the minimum-contacts requirement, notwithstanding that she has never been present here; additionally, the procedures adopted by the trial court, in directing that at the close of DYFS’ case in chief the trial be recessed to allow a Creole version of the testimony to be sent to the mother, who was then given more than a month to review and discuss the testimony with counsel and allowed to recall DYFS’ witnesses for cross-examination and to present a telephonic deposition and video recording, which was viewed by the court and admitted into evidence, satisfied the requirements of due process, and the termination of her parental rights is affirmed. 172 N.J.L.J. 788 FAMILY LAW — Property Settlements — Visitation Abouzahr v. Matera-Abouzahr , A-6166-00T5; Appellate Division; opinion by Collester, J.A.D.; decided and approved for publication June 11, 2003. Before Judges Stern, Collester and Alley. On appeal from the Chancery Division, Family Part, Bergen County, FM-02-2343-99. [Sat below: Judge Koblitz.] DDS No. 20-2-3957 The Appellate Division declines to adopt a bright-line rule prohibiting out-of-country visitation by a parent whose country has not adopted the Hague Convention or executed an extradition treaty with the United States; applications for such a prohibition are to be assessed on a case-by-case basis considering not only the danger of retention of a child in a country where prospects of retrieving her and extraditing the wrongful parent are difficult, if not impossible, but also the domicile and roots of the parent seeking such visitation, the reasons for the visit, the child’s safety, security, age and attitude, and the character and integrity of the parent seeking the visitation as gleaned from past conduct; here, where plaintiff had signed a property settlement giving defendant-father one month of visitation with his daughter in Lebanon, which is not a signatory to the Hague Convention and does not have an extradition treaty with the United States, there was sufficient credible evidence to support the trial judge’s finding that there had been no changed circumstances to support modification of the parenting time provided in the settlement and that such visitation serves the best interests of the child, since plaintiff was aware when she signed the settlement of the difficulties of retrieving her child if defendant retained her in Lebanon, and there is nothing to indicate that he intends to abscond with the child. 172 N.J.L.J. 1167 FAMILY LAW — Psychological Parents — Retroactivity — Visitation A.B. v. S.E.W. , A-155 September Term 2001; Supreme Court; opinion by Verniero, J.; decided April 1, 2003. On certification to the Appellate Division. [Sat below: Judges Conley and Lefelt in the Appellate Division.] DDS No. 20-1-3285 Here, where a trial court denied plaintiff visitation with her former domestic partner’s child as not in the child’s best interests, notwithstanding that it found that she had stood in loco parentis to the child, her motion two years later to reopen that decision, based solely on V.C. v. M.J.B., 163 N.J. 200 (2000) — which articulated the standard for determining whether a party should be awarded visitation as a “psychological parent” — was properly denied; V.C. is not an exceptional circumstance justifying relief under Rule 4:50-1; moreover, courts must consider the prejudice and foreseeable harm to a child when a legal challenge jeopardizes a well-settled home environment, and the child’s paramount interest here in stability and permanency appears to significantly outweigh the asserted benefits of plaintiff’s requested relief; although visitation orders are subject to revision depending on changed factual circumstances, the jurisdiction of the court cannot be invoked merely because a party wishes to argue new case law, since to do so would deprive all parents and children of repose from visitation complaints; V.C. will not be applied retroactively where the time for direct appeal has clearly expired and where such application would expose children and their caregivers to a serious disruption of their family life. 172 N.J.L.J. 45 FAMILY LAW — Religious Contracts Mayer-Kolker v. Kolker , A-4476-01T1; Appellate Division; opinion by Alley, J.A.D.; decided and approved for publication March 28, 2003. Before Judges Stern, Collester and Alley. On appeal from the Law Division, Passaic County, FM-16-38-01. [Sat below: Judge Selser.] DDS No. 20-2-3253 Because the parties have not presented the court with their ketubah (a Jewish marriage contract) it cannot be determined if the agreement has the effect of subjecting the parties to Mosaic law, and thus whether the court can compel defendant to give plaintiff a get (a release by a former husband allowing his ex-wife to remarry); the matter is remanded for development of a more complete record. 172 N.J.L.J. 80 FARMLAND ASSESSMENTS (see TAXATION) FICTITIOUS-NAME PRACTICE (see CIVIL PRACTICE) FINGERS (see WORKERS’ COMPENSATION) FIREARMS (see CRIMINAL PRACTICE) FORECLOSURES (see REAL PROPERTY) FRANCHISES (see CONSUMER PROTECTION) FRAUD (see CONSUMER PROTECTION, INSURANCE LAW) FRIVOLOUS CLAIMS (see ATTORNEYS’ FEES) FULL FAITH AND CREDIT (see INSURANCE LAW) FUNDING (see SCHOOLS and EDUCATION) GOVERNMENT — Adoption — Appeals — Public Defender — Transcripts In the Matter of Adoption of a Child by J.D.S., II and C.S. , A-74 September Term 2001; Supreme Court; per curiam opinion; decided May 8, 2003. On appeal from the Appellate Division. DDS No. 28-1-3644 Where it is not appropriate to shift the cost of a transcript on appeal to a plaintiff in an involuntary, private adoption action, the Office of the Public Defender has a duty to an indigent confronted with the loss of parental rights under N.J.S.A. 9:3-46 to pay for a transcript on appeal, even where, as here, the OPD did not participate in the involuntary adoption proceeding, at which the indigent parent was represented by Legal Services, whose limited financial resources render it unable to shoulder the responsibility for the appellate transcripts; courts are encouraged to restrict the required portions of a transcript to minimize the impact on the public fisc. 172 N.J.L.J. 563 GOVERNMENT — Attorneys’ Fees — Open Public Records — Schools — Special Service Charges The Courier-Post v. Lenape Regional High School District , L-2754-02; Law Division, Burlington County; opinion by Sweeney, A.J.S.C.; decided October 28, 2002; approved for publication April 7, 2003. DDS No. 52-3-1975 Whether a request to produce documents requires an “extraordinary expenditure of time and effort” under the Open Public Records Act sufficient to warrant a “special service charge” is a factual determination to be made after consideration of many variables, including the size of the agency, the number of employees available to accommodate document requests, the availability of information technology, copying capabilities, and the nature, size, and number of documents sought; here, where plaintiff asked to inspect six and a half years of monthly itemized bills submitted to defendant-school district by several law firms in connection with its facilities-expansion plan, the sheer number of documents and the amount of time required renders the request “extraordinary,” allowing a fair and reasonable fee based on the number of clerical hours necessary to locate, assemble, and refile the records, and the number of professional hours needed to monitor the inspection if the district can prove the need for such monitoring. The Open Public Records Act places the responsibility for identifying and redacting exempt material on the custodian of the records sought to be inspected, and a special service charge may be made for the time expended for redacting, particularly if the records are voluminous; however, attorneys’ fees for review and redaction may not be charged to any requester of documents. 172 N.J.L.J. 416 GOVERNMENT — Beach Tags — Municipalities — Public Trust Secure Heritage, Inc. v. City of Cape May et al , A-4574-01T2; Appellate Division; opinion by Lintner, J.A.D.; decided and approved for publication June 24, 2003. Before Judges Braithwaite, Lintner and Parker. On appeal from the Law Division, Cape May County, L-240-01. [Sat below: Judge Batten.] DDS No. 30-2-4093 The sections of the municipal ordinance that ban the sale of seasonal beach tags to hotels, motels, inns, bed and breakfasts, and other rental units, but permit individuals to purchase transferable seasonable beach tags are not rationally related to the intent of the ordinance — to raise revenue for beach operations — and violate both the federal and State constitutions, and the trial court order is affirmed insofar as it declared the provisions banning the sale and transfer of seasonal beach tags to the lodging industry unconstitutional; the trial judge erred in striking down the ordinance limit of five seasonal beach tags per person, since plaintiffs presented no evidence of its irrationality and thus failed to meet their burden of proof, and the limit’s relationship to the number of persons in the average nuclear family was sufficient to justify it; the provisions of the order requiring defendant-city to account for its indirect beach expenses and to maintain a separate account reflecting beach tag revenue and expenses pursuant to the public trust doctrine is reversed and the matter is remanded for further proceedings, since it cannot be determined on this record that the city’s accounting system was inappropriate where the dispute focuses only on the indirect costs — Slocum v. Borough of Belmar should not be read as requiring a separate account in all cases. 172 N.J.L.J. 1281 GOVERNMENT — Civil Service — Examinations — Police — State Constitution In the Matter of Police Sergeant , A-138 September Term 2001; Supreme Court; opinion by Zazzali, J.; decided April 16, 2003. On certification to the Appellate Division. [Sat below: Judges Ciancia and Parrillo in the Appellate Division.] DDS No. 33-1-3448 The New Jersey Department of Personnel’s practice of administering identical exams to original and make-up candidates in the same testing cycle is not a per se violation of a candidate’s right to a fair and competitive civil service examination under article VII, section 1, paragraph 2 of the New Jersey Constitution, but here, where there is evidence that unknown persons disseminated nearly all of the test questions and answers throughout the Paterson Police Department immediately following the original exam, the make-up exam violated the State Constitution, even absent evidence that anyone who took the make-up exam had advance knowledge of its content; the candidates who were appointed to the position of sergeant based on the results of the initial exam may retain their positions, but the results of the make-up exam are voided, and the next scheduled promotional exam shall be open to all eligible candidates, including those who sat for the initial exam and the make-up exam; the Merit System Board and the Department of Personnel should administer make-up exams that contain substantially or entirely different questions from those used in the original exam. 172 N.J.L.J. 227 GOVERNMENT — Civil Service — Jurisdiction — Public Officers In the Matter of Police Sergeant (PM3220S), Jersey City , A-6781-00T5; Appellate Division; opinion by Rodriguez, J.A.D.; decided and approved for publication May 28, 2003. Before Judges Havey, A.A. Rodriguez and Wells. On appeal from the final decision of the State of New Jersey Department of Personnel’s Merit System Board. DDS No. 33-2-3820 Since the de facto-officer statute does not lie within the ambit of the Civil Service Act, a person deemed to be a de facto public officer or employee pursuant to N.J.S.A. 40A:9-6 does not acquire civil service re-employment rights as an “emolument” of such office or position; also, the Law Division, not the Merit System Board, is the exclusive forum for adjudicating de facto officer or employee claims. 172 N.J.L.J. 991 GOVERNMENT — Debt Limitations — State Constitution — Voters Lonegan et al v. State of New Jersey et al , A-15 September Term 2002; Supreme Court; opinion by Poritz, C.J.; dissent by Long, Verniero, and Zazzali, JJ.; decided April 9, 2003. On appeal from the Appellate Division, 341 N.J. Super. 465 (App. Div. 2001). [Sat below: Judges Petrella, Newman and Wells in the Appellate Division; Judge Moses in the Law Division.] DDS No. 21-1-3392 The Debt Limitation Clause in the New Jersey Constitution, which requires voter approval when the State is legally required to pay the debt it has incurred, does not apply to appropriations-backed debt, and plaintiffs’ broad challenge to the constitutional validity of 14 statutes that authorize debt, without requiring voter approval, payment of which is subject to legislative appropriations, is rejected; this reaffirms over 50 years of Supreme Court precedent and recognizes the State’s reliance on those precedents when crafting complex financing mechanisms responsive to changing market conditions — judgments about the issuance of debt when the State’s full faith and credit is not implicated are best left to the other branches of government. 172 N.J.L.J. 129 GOVERNMENT — Disabilities Benefits Angiola v. Board of Trustees, Public Employees’ Retirement System , A-3718-01T2; Appellate Division; opinion by Payne, J.A.D.; decided and approved for publication April 11, 2003. Before Judges Havey, Rodriguez and Payne. On appeal from a final administrative determination of the Board of Trustees, Public Employees’ Retirement System. DDS No. 56-2-3395 Where an automobile went out of control and was heading for petitioner’s tollbooth, and he jumped backward to avoid being hit, thereby injuring himself, the administrative law judge erred in focusing on the character of petitioner’s own actions in response to the threat of the oncoming car rather than on whether he set the risk of injury in motion; also, in finding that the injury was not caused by a great rush of force or uncontrollable power, the ALJ incorrectly disregarded the danger posed by the oncoming automobile and focused instead solely on petitioner’s conduct in moving backward, thereby considering only half of the continuum of events comprising the accident; the board’s adoption of the ALJ’s decision denying petitioner accidental disability retirement benefits is reversed. 172 N.J.L.J. 224 GRAND JURIES (see CRIMINAL PRACTICE) GUNS (see CRIMINAL PRACTICE) HARASSMENT (see CRIMINAL PRACTICE) HEALTH-CARE PROVIDERS (see TAXATION) HEARSAY (see CRIMINAL PRACTICE) HIV (see TORTS) HOME IMPROVEMENTS (see CONSUMER PROTECTION) HOMEOWNERS (see TORTS) HOSPITALS (see ADMINISTRATIVE LAW) HOSTILE WORK ENVIRONMENT (see EMPLOYMENT LAW) IMMUNITY (see WORKERS’ COMPENSATION) INCOME (see CRIMINAL PRACTICE) INDEMNIFICATION (see INSURANCE LAW, WORKERS’ COMPENSATION) INDEPENDENT CONTRACTORS (see TORTS) INDEPENDENT-SOURCE RULE (see CRIMINAL PRACTICE) INSURANCE LAW — Advertising Injuries — Indemnification — Trademarks Villa Enterprises Management Ltd. v. Federal Insurance Company , MRS-L-1131-01; Law Division, Morris County; opinion by Miniman, J.S.C.; decided October 11, 2002; approved for publication April 7, 2003. DDS No. 53-3-3460 Here, where defendant-insurer refused to defend and indemnify plaintiff in the underlying action alleging advertising injury and unfair competition from its use of “Villa Pizza,” a trademarked and service-marked name owned by the Nevada plaintiff below (which was resolved by settlement), and where the comprehensive general-liability policy that defendant had issued to this plaintiff excludes coverage generally for infringement of trademarks and service marks but provides insurance protection for infringement of trademarked or service-marked “titles,” defendant’s attempt to limit “title,” which is not defined in the policy, to the names of literary works, is rejected; that definition would do violence to the reasonable expectations of the average insured and would create rather than resolve ambiguity, and the claims in the underlying action were therefore covered by the “advertising injury” provisions in the policy and defendant should have provided plaintiff with a defense. 172 N.J.L.J. 240 INSURANCE LAW — Attorneys’ Fees — PIP David v. Government Employees Insurance Company et al , A-1983-01T5; Appellate Division; opinion by Alley, J.A.D.; decided and approved for publication May 8, 2003. Before Judges Stern, Coburn and Alley. On appeal from the Law Division, Somerset County. [Sat below: Judge Hoens.] DDS No. 23-2-3641 While Knox v. Lincoln Gen. Ins. Co. may be subject to some criticism, there is no compelling reason to repudiate it and, therefore, an insurer is not required to notify its insured before obtaining reimbursement for PIP benefits from an alleged tortfeasor’s insurer even though the tortfeasor’s coverage might be insufficient to cover both the PIP reimbursement claim and the damages of the PIP carrier’s insured, and the insured consequently might be unable to recover from the tortfeasor’s carrier his or her full amount of damages; also, because N.J.S.A. 39:6A-9.1 does not explicitly provide for the award of counsel fees, in the arbitration proceeding for reimbursement the arbitrator erred in awarding attorneys’ fees to plaintiff’s insurer, and plaintiff, a nonparty to the arbitration, should not be bound by the erroneous award and may proceed against her insurer for the amount of fees that reduced her recovery for damages against the tortfeasor (while plaintiff may have had a cause of action for the wrongful dissipation of the policy coverage against the tortfeasor’s insurer, it was released from the litigation). 172 N.J.L.J. 584 INSURANCE LAW — Auto Insurance — Chiropractors Olarte v. Crocker , PAS-L-505-01; Law Division, Passaic County; opinion by DeLuccia, J.S.C.; decided September 25, 2002; approved for publication April 7, 2003. DDS No. 23-3-3394 A certification by a chiropractor complies with N.J.S.A. 39:6A-8(a) of the Automobile and Insurance Cost Reduction Act of 1998, requiring service of a physician’s certification within 60 days from the date of an answer to the complaint; also, although the certification was untimely, the motion to dismiss the complaint is denied since a dismissal without prejudice would bar the refiling of the complaint because of the statute of limitations, and an otherwise viable claim should not be barred on a purely procedural basis. 172 N.J.L.J. 242 INSURANCE LAW — Auto Insurance — Step-Down Clauses — Uninsured/Underinsured Coverage Botti v. CNA Insurance Company et al , A-1462-01T3; Appellate Division; opinion by Rodriguez, J.A.D.; decided and approved for publication June 17, 2003. Before Judges Havey, Rodriguez and Wells. On appeal from the Law Division, Ocean County, L-994-01. [Sat below: Judge Piscal.] DDS No. 23-2-4030 The “step-down” clause in the uninsured/underinsured endorsement of the auto insurance policy issued to plaintiff’s employer as a “named insured,” that limits the UM coverage afforded to an employee who is a “named insured” in another policy with lower UM limits, is enforceable against plaintiff, since there is no ambiguity in the step-down clause or in the term “named insured,” and plaintiff, who is a “named insured” under a policy covering his family car, which provides a lower UM limit, is not a “named insured” under his employer’s policy and could not have had an objectively reasonable expectation of being a named insured under that policy; this holding differs from Macchi v. Connecticut Gen. Ins. Co. and Araya v. Farm Family Cas. Ins. Co., decided by other panels of the Appellate Division. 172 N.J.L.J. 1200 Christafano v. New Jersey Manufacturers Insurance Co., A-3152-02T2; Appellate Division; opinion by Lintner, J.A.D.; decided and approved for publication June 17, 2003. Before Judges Braithwaite, Lintner and Parker. On appeal from the Law Division, Essex County, L-9205-02. [Sat below: Judge Winard.] DDS No. 23-2-4029 The step-down provision limiting uninsured motorist (UM) coverage in the insurance policy that defendant issued to plaintiff’s mother, under which plaintiff is covered as a family member, is clear and unambiguous, and here, where plaintiff is not the named insured under defendant’s policy but is the named insured under another policy covering his personal car, and that policy provides UM coverage with lesser limits of liability than defendant’s policy, the step-down provision limits defendant’s UM coverage to that afforded in plaintiff’s policy, and the trial court decision finding that the step-down provision is ambiguous is reversed; the step-down provision, which does not eliminate or exclude UM coverage when other policies are available or seek to avoid pro rata contribution, does not violate N.J.S.A. 17:28-1.1. 172 N.J.L.J. 1201 INSURANCE LAW — Auto Insurance — Uninsured Motor Vehicles Lightner v. Solis et al , A-3156-01T3; Appellate Division; opinion by Parrillo, J.A.D.; decided and approved for publication April 15, 2003. Before Judges Newman, Carchman and Parrillo. On appeal from the Law Division, Essex County, L-1530-00. [Sat below: Judge Bernstein.] DDS No. 05-2-3414 Simple ownership of an uninsured motor vehicle at the time of an accident is not, by itself, an absolute bar to recovery of damages as a result of the accident, but neither is actual operation of the uninsured car at the accident scene necessary for N.J.S.A. 39:6A-4.5(a) to bar recovery — rather, there must be a fact-sensitive, individual analysis of the circumstances, focusing on whether the owner intended to operate the uninsured car at or around the time of the accident to determine her eligibility to sue for loss; here, where plaintiff-owner was injured when defendant’s car struck her parked, uninsured car, which she did not drive other than from one side of the street to the other to avoid parking tickets, while she was sitting on the passenger side, the motion judge properly determined that whether she intended to operate the car should not be determined on a motion for summary judgment; on remand, her intent should be determined by the judge after considering such factors as the car’s operability, the presence or absence of license plates and registration, and the prior use of the car in relation to the accident. 172 N.J.L.J. 330 INSURANCE LAW — Burdens — Fraud The Harleysville Insurance Company v. Diamond , MRS-L-1940-00; Law Division, Morris County; opinion by Villanueva, J.A.D. (retired and temporarily assigned on recall); decided July 17, 2002; approved for publication March 7, 2003. DDS No. 23-3-3103 In this action to void an insurance policy and to obtain treble damages under the New Jersey Insurance Fraud Protection Act, based on defendants’ allegedly having fraudulently induced plaintiff to pay for an allegedly stolen limousine, plaintiff-insurer must prove fraud by clear and convincing evidence. 172 N.J.L.J. 47 INSURANCE LAW — Choice of Law — Environmental Law Lonza Inc. v. The Hartford Accident and Indemnity Company et al , A-5858-00T3; Appellate Division; opinion by Stern, P.J.A.D.; decided and approved for publication April 7, 2003. Before Judges Stern, Coburn and Collester. On appeal from the Law Division, Bergen County, L-1037-97. [Sat below: Judge Hamer.] DDS No. 23-2-3332 Where the contamination occurred at plaintiff’s plant in Rhode Island and the primary comprehensive general-liability policy was issued to plaintiff’s parent company in New York, while the excess policies were issued to plaintiff in New Jersey, the trial judge properly concluded that Rhode Island law governed the primary policy but erred in holding that New Jersey law governed the excess policies; the law of the state that governs the allocation or “trigger” for coverage of the primary policy must also govern with respect to the excess coverage and, therefore, the law of Rhode Island applies to both policies (while under Rhode Island law carriers are liable only if they provide coverage in the year that the “manifestation” occurred, under New Jersey law responsibility would be apportioned during the entire period of pollution and, therefore, applying Rhode Island law to the primary policies would result in no primary coverage for defendant because the pollution manifested itself before it issued its policy, and applying New Jersey law to the excess policies would result in no excess coverage because the excess policies would not be reached until the primary policies are exhausted). 172 N.J.L.J. 153 INSURANCE LAW — Collateral Estoppel — PIP Fama v. Yi , A-6918-00T5; Appellate Division; opinion by Alley, J.A.D.; decided and approved for publication April 7, 2003. Before Judges Stern, Coburn and Alley. On appeal from the Law Division, Middlesex County, L-1891-99. [Sat below: Judge McCormick.] DDS No. 23-2-3333 Where a jury had determined that plaintiff’s injuries were not proximately caused by the auto accident, and he then sought personal-injury-protection benefits against his insurer, nothing precludes the application of collateral estoppel against plaintiff since there was no new evidence presented and he was the actual party in interest in the personal-injury action and actively pursued his claim; the trial court’s determination that the jury verdict collaterally estopped plaintiff from arguing that he was entitled to PIP benefits is affirmed. 172 N.J.L.J. 157 INSURANCE LAW — Comity — Full Faith and Credit — Rehabilitation Aly v. E.S. Sutton Realty et al, etc. , A-3980-02T1, A-3981-02T1, A-3982-02T1, A-3983-02T1, A-3991-02T5; opinion by Hoens, J.A.D.; decided and approved for publication May 14, 2003. Before Judges Pressler, Ciancia and Hoens. On appeal from the Law Division, Hudson County, L-2526-01, L-3113-01, L-2876-00, L-5534-01, L-953-01. [Sat below: Judges Gallipoli.] DDS No. 23-2-3686 Here, where a Pennsylvania insurance company authorized to offer commercial general-liability insurance policies in New Jersey was placed into rehabilitation by a Pennsylvania court, which also ordered a stay of all proceedings in Pennsylvania “or elsewhere” against the company and against all its insureds for 90 days, which stay was extended numerous times, principles of comity dictate that New Jersey trial courts honor the initial stay for rehabilitation and that they continue to honor the extensions in all cases in which the litigants themselves do not affirmatively seek relief from the stay; however, where the litigants do seek such relief, the discretion given to the Pennsylvania Commissioner of Insurance in the stay to permit the insurer to appear, defend, settle and pay out claims or judgments in pending matters necessarily creates an equivalent right of access for New Jersey citizens through New Jersey courts, and individual claimants shall be permitted, by application to the civil presiding judge of the vicinages where their matters are pending, to demonstrate that continued adherence to the stay has caused true hardship, which applications, it is assumed, will be sparingly granted; it is expected that decisions to lift the stay in particular cases will be accorded recognition consistent with comity by the Pennsylvania Commissioner and that orders directing the insurer to appear and defend will be honored and any judgments will be accorded full faith and credit; the regulations defining “hardship” in the context of the re-organization of the Joint Underwriting Association, as part of the New Jersey Fair Automobile Insurance Reform Act of 1990 and later as a part of the creation of the Market Transition Facility, are adopted as guides to determine hardship in this context. 172 N.J.L.J. 588 INSURANCE LAW — Deemer Statute — PIP Government Employees Insurance Co. v. Allstate Insurance Co. , A-995-01T3; Appellate Division; opinion by Lefelt, J.A.D.; decided and approved for publication March 25, 2003. Before Judges Cuff, Lefelt and Winkelstein. On appeal from the Law Division, Union County, L-3762-00. [Sat below: Judge Pisansky.] DDS No. 23-2-3202 The 1998 amendment to the deemer statute, N.J.S.A. 17:28-1.4, which mandates that some auto insurance companies include in their out-of-state issued policies certain New Jersey auto insurance coverages, including personal injury protection, was not intended to include companies that are not authorized to write insurance business in New Jersey, and plaintiff, an out-of-state company that is not authorized to do any type of insurance business in New Jersey, is not subject to the deemer statute — that it is owned by a corporation that also owns 82% of another insurer that is authorized to transact certain limited forms of nonautomobile and nonmotor vehicle insurance in New Jersey does not bring it within the statutory requirements; since it is not obligated to provide PIP benefits under the deemer statute, it is not excluded from reimbursement requirements under N.J.S.A. 39:6A-9.1 and must reimburse defendant for PIP benefits that defendant had to pay to its insureds for injuries sustained in accidents in New Jersey caused by tortfeasors insured by plaintiff. 172 N.J.L.J. 76 INSURANCE LAW — Environmental Pollution — Noncumulation Clauses Spaulding Composites Company Inc. v. Aetna Casualty and Surety Company et al , A-88 September Term 2001; Supreme Court; opinion by Long, J.; decided April 10, 2003. On appeal from the Appellate Division, 346 N.J. Super. 167 (App. Div. 2001). [Sat below: Judges Skillman, Wallace and Wells in the Appellate Division; Judge Minuskin in the Law Division.] DDS No. 23-1-3374 The continuous-trigger and “pro-rata allocation” doctrines enunciated in Owens-Illinois and Carter-Wallace are reaffirmed, and they preclude the enforcement in this long-tail environmental-pollution case of the noncumulation clause in the comprehensive general-liability policy invoked by defendant-insurer to restrict its exposure on nine years of coverage to a single policy limit, so the judgment of the Appellate Division to the contrary is reversed, and the trial court’s grant of summary judgment on the noncumulation clause in favor of the insured is reinstated. 172 N.J.L.J. 226 INSURANCE LAW — Inventory — Substantial Compliance Sherwood Products, Inc. et al v. Connecticut Indemnity Company et al , A-65-01T5; Appellate Division; opinion by Skillman, P.J.A.D.; decided December 30, 2002; approved for publication April 11, 2003. Before Judges Skillman, Cuff and Winkelstein. On appeal from the Law Division, Camden County, L-3193-99. [Sat below: Judge Little.] DDS No. 23-2-2419 Where the insurance policy required plaintiffs to maintain an itemized inventory of all their jewelry, purchases and sales, and any merchandise taken from its premises to another location, plaintiffs did not substantially comply with this requirement by providing only purchase and sales receipts for merchandise, based on plaintiffs’ memory of what was stolen at the trade show, and judgment in their favor is reversed. 172 N.J.L.J. 416 INSURANCE PROCEEDS (see TRUSTS and ESTATES) INTENT TO DISTRIBUTE (see CRIMINAL PRACTICE) INVENTORY (see INSURANCE LAW) INVERSE CONDEMNATION (see ADMINISTRATIVE LAW) JUDGES (see REAL ESTATE) JURIES (see CRIMINAL PRACTICE) JURISDICTION (see FAMILY LAW, GOVERNMENT, TORTS) JURY INSTRUCTIONS (see CRIMINAL PRACTICE, TORTS) JURY TRIALS (see CRIMINAL PRACTICE) JUVENILES (see CRIMINAL PRACTICE) KROL COMMITMENTS (see CRIMINAL PRACTICE) LACHES (see EMPLOYMENT LAW, FAMILY LAW, REAL PROPERTY) LAND USE and PLANNING — Affordable Housing — Conflicts of Interest — Eminent Domain — Special Masters Deland et al v. C.M.R. & Co. et al , A-6805-00T5; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication May 30, 2003. Before Judges Skillman, Cuff and Lefelt. On appeal from the Law Division, Union County, L-73036-87. [Sat below: Judge Pisansky.] DDS No. 26-2-3842 Where the special master who submitted recommendations to the trial judge in this Mount Laurel case was also acting as the planner for developer-plaintiffs in other Mount Laurel cases, and the same principal holding financial interests in those developments stood to benefit from the recommendations of the special master, the special master should have been disqualified — a Mount Laurel special master is subject to substantially the same conflict-of-interest rules as a judge; however, there is no need to remand this matter to the trail court for reconsideration since the trial court’s rulings were primarily legal. A municipality that has rezoned property for affordable housing pursuant to a developer’s agreement may subsequently acquire the property by eminent domain if the municipality has satisfied its affordable-housing obligations and the property’s fair market value is determined in accordance with the zoning established pursuant to the developer’s agreement; therefore, the trial court’s order enjoining the town from pursuing its action to acquire the site by eminent domain is reversed. 172 N.J.L.J. 997 LAND USE and PLANNING — Antennas — Telecommunications Carriers Sprint Spectrum, L.P. v. Leonia Zoning Board of Adjustment , A-1891-01T5; Appellate Division; opinion by Winkelstein, J.A.D.; decided and approved for publication May 28, 2003. Before Judges Skillman, Lefelt and Winkelstein. On appeal from the Law Division, Bergen County, BER-L-4344-01. [Sat below: Judge Jonathan N. Harris.] DDS No. 26-2-3815 Here, where plaintiff-telecommunications carrier applied for use, height, and rear-yard variances to construct nine wireless antennas and other telecommunications equipment on the roof of an apartment building that is partly in a single-family zone and partly in a multiple-family zone, defendant zoning board of adjustment erred in denying the variances, and the Law Division reversal of that denial is affirmed; the proposed facilities will serve the general welfare (by filling a gap in the carrier’s coverage, furthering the Telecommunications Act’s goal of promoting competition among cell-phone carriers, and allowing 911 operators to identify emergency calls in the coverage area), and the benefits to the public will outweigh any detrimental impact on the residents (which will be negligible or nonexistent, since the equipment will generate no traffic, noise, odors, or pollution, will require no municipal services, will rise no higher than the parapet and other structures on the roof and will not be visible from the street, will not lower property value, will require infrequent maintenance, and are considered safe), and locating the equipment in a residential zone will not substantially impair the intent or purpose of the zone plan or ordinance. 172 N.J.L.J. 992 LAND USE and PLANNING — CAFRA — Title Searches — Variances Island Venture Associates v. New Jersey Department of Environmental Protection , A-3510-01T3; Appellate Division; opinion by Ciancia, J.A.D.; decided and approved for publication April 11, 2003. Before Judges Wallace, Ciancia and Axelrad. On appeal from the New Jersey Department of Environmental Protection, CAF 1517-99-0048.1. DDS No. 34-2-3397 Without disagreeing with the rationale or result in Aldrich v. Schwartz, which held that a variance condition undiscoverable by a diligent search of title was binding on an innocent purchaser of the property, here, however, where the land-use restriction imposed by the State Department of Environmental Protection pursuant to the Coastal Area Facility Review Act (CAFRA) on plaintiff-bona fide purchaser’s predecessor in title was not discoverable by plaintiff’s diligent search of record title, the public interest in the integrity of the State’s property-recording system warrants a different result; although the public interest in the proper development of the coastal area cannot be disputed, the integrity and reliability of the recording statutes require that plaintiff receive the benefit of its due diligence, especially since, because CAFRA addresses specifically defined geography, there is no potential for innumerable restrictions established by hundreds of municipalities as there was in Aldrich, the DEP has taken additional steps to assure the proper recordation of CAFRA deed restrictions, and CAFRA and the public-recording statutes can co-exist without detriment to either’s public policy. 172 N.J.L.J. 218 LAND USE and PLANNING — Condemnation — Delay Damages — Remedies DeSai v. Board of Adjustment of the Town of Phillipsburg , A-4773-01T3; Appellate Division; opinion by Petrella, P.J.A.D.; decided and approved for publication April 22, 2003. Before Judges Petrella, Lintner and Bilder. On appeal from the Law Division, Warren County, WRN-L-199-95. [Sat below Judge Seybolt.] DDS No. 44-2-3487 The denial by the board of adjustment of plaintiff’s application for a use variance to expand the existing first-floor commercial use of his property and to convert the third floor into two apartments was correctly found to be arbitrary, capricious, and unreasonable; the trial judge fashioned a permissible remedy for this inverse condemnation by giving the board the choice of either rezoning the property (which it has now done) or paying just compensation to plaintiff; under either alternative, the municipality was properly required to pay plaintiff delay damages, and the amount is affirmed. 172 N.J.L.J. 333 LAND USE and PLANNING — Limitations of Actions — Municipalities D.L. Real Estate Holdings, L.L.C. v. Point Pleasant Beach Planning Board et al , A-152/153 September Term 2001; Supreme Court; opinion by LaVecchia, J.; dissent by Verniero, J.; decided April 28, 2003. On certification to the Appellate Division. [Sat below: Judges Ciancia and Parrillo in the Appellate Division; Judge Clyne in the Chancery Division.] DDS No. 26-1-3546 A municipality has the authority, by fair implication of the Municipal Land Use Law, to adopt an ordinance that requires an applicant to seek final subdivision approval within three years of the grant of preliminary approval and any extension thereof, and the exercise of this authority does not truncate any of the rights expressly conferred by N.J.S.A. 40:55D-49; to the extent that Palantine I v. Planning Board of the Township of Montville can be read to provide that a municipality may not require a developer to submit for final approval within the statutory period of protection for preliminary approval, its language is disapproved; the decision of the Appellate Division invalidating the municipal ordinance that imposed a three-year expiration on the grant of preliminary approval, which served as the basis for rejecting plaintiff’s application for final approval, is reversed. 172 N.J.L.J. 389 LAND USE and PLANNING — Maintenance Bonds — Performance Bonds R.J.P. Builders, Inc. v. Township of Woolwich et al , A-6843-00T3; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication June 13, 2003. Before Judges Skillman, Cuff and Winkelstein. On appeal from the Law Division, Gloucester County, L-534-01. [Sat below: Judge Stanger.] DDS No. 26-2-3996 Under the Municipal Land Use Law, municipalities are authorized to obtain performance and maintenance guarantees from developers, and the trial court correctly held that the requirement imposed on plaintiff-developer, as a condition of final major subdivision approval, that it provide a maintenance guarantee before the filing of its subdivision plat, is valid; however, the condition that requires the developer to complete all improvements within 18 months of the resolution granting final subdivision approval is invalid, and the part of the trial court decision upholding that condition is reversed. 172 N.J.L.J. 1198 LAND USE and PLANNING — Subdivision Approval Toll Bros. Inc. et al v. The Planning Board of the Township of Pohatcong , A-3751-01T1; Appellate Division; opinion by Conley, P.J.A.D.; decided and approved for publication April 17, 2003. Before Judges Conley, Newman and Carchman. On appeal from the Law Division, Warren County, L-512-00. [Sat below: Judge Seybolt.] DDS No. 26-2-3461 N.J.S.A. 40:55D-49b extends the period of protection from zoning changes afforded a preliminary major subdivision approval on the mere filing of an application for final approval, which need not be in the form of an application that is deemed complete prior to the expiration of the protection period; where plaintiff filed its application for final subdivision approval prior to the expiration of the protective period, and the township engineer rejected it as incomplete, the order of the Law Division directing defendant-planning board to consider the application is affirmed. 172 N.J.L.J. 334 LAND USE and PLANNING — Telecommunications Nextel of New York Inc. v. Borough of Englewood Cliffs Board of Adjustment , A-6197-01T5; Appellate Division; opinion by Lintner, J.A.D.; decided and approved for publication June 3, 2003. Before Judges Petrella, Lintner and Parker. On appeal from the Law Division, Bergen County, L-39-02. [Sat below: Judge Jonathan N. Harris.] DDS No. 26-2-3874 Where plaintiff’s expert offered no specific information regarding the nature of the “gaps” in service that created the possibility that cell phone reception would be lost, nor did he present an analysis based on factual data, and he avoided the board of adjustment’s questions regarding the possibility of altering existing antennas so that plaintiff could locate its antennas on the municipal tower within the proper zone rather than obtaining a variance, the trial judge’s finding that the expert’s testimony was not competent and amounted to a net opinion and, therefore, that the board’s denial of the variance was not arbitrary, capricious or unreasonable, and that its action did not violate the Telecommunications Act of 1996, is affirmed. 172 N.J.L.J. 1097 LANDLORD AND TENANT (see REAL ESTATE, REAL PROPERTY, TORTS) LANDOWNER LIABILITY (see TORTS) LEGAL MALPRACTICE (see LEGAL PROFESSION) LEGAL PROFESSION — Admission Pro Hac Vice — Client Protection Fund Boston University v. University of Medicine and Dentistry of New Jersey , A-22 September Term 2002; Supreme Court; opinion by Zazzali, J.; decided May 7, 2003. On certification to the Law Division, Essex County. [Sat below: Judge Bernstein.] DDS No. 04-1-3629 A licensed New Jersey attorney who is ineligible to practice law in this state may not rely on his good standing in another jurisdiction to appear pro hac vice — an attorney licensed here must be a member in good standing of the New Jersey bar before he may appear pro hac vice, and New Jersey attorneys who are not in good standing here must disclose that fact when they seek to appear pro hac vice under Rule 1:21-2; here, where the trial court granted one of plaintiff’s attorneys permission to appear pro hac vice in plaintiff’s contract dispute, based on his status as a member in good standing of the Massachusetts bar, that permission was conditioned, under Rule 1:21-2b(1), on compliance with the New Jersey Court Rules, including the Court’s Orders, which indicate that the attorney, who maintains a license to practice law in New Jersey but who has not paid the annual fee to the New Jersey Lawyers’ Fund for Client Protection for nearly two decades, is ineligible to practice here; if he makes full payment of the fees required by Rules 1:20-2(b) and 1:28-2, including arrearages, within 30 days and obtains a Certificate of Good Standing, he may represent plaintiff, but if he fails to make payment the trial court shall revoke his permission to appear pro hac vice; Rule 1:21-2 is referred to the Civil Practice Committee for appropriate clarification consistent with this opinion. 172 N.J.L.J. 477 LEGAL PROFESSION — Discovery — Sanctions Seacoast Builders Corporation v. Rutgers, The State University et al , A-5837-1T5F, A-5838-1T5F; Appellate Division; opinion by Coburn, J.A.D.; decided and approved for publication March 24, 2003. Before Judges Stern, Coburn and Collester. On appeal from the Law Division, Essex County, L-6522-00. [Sat below: Judge Honigfeld.] DDS No. 07-2-3188 The extent and nature of respondent-law firm’s misconduct in discovery proceedings, particularly in light of the resulting delay, disadvantage, and inconvenience, fully justifies the sanction imposed here: all the documents appellants requested in discovery and deemed privileged as work product by the Law Division judge must be disclosed to appellants; however, making the documents available for discovery does not mean that they will be admissible at trial, an issue not decided here. 172 N.J.L.J. 73 LEGAL PROFESSION — Legal Malpractice — Limited Representation — Matrimonial Actions Lerner v. Laufer , A-2079-01T2; Appellate Division; opinion by Wells, J.A.D.; decided and approved for publication April 8, 2003. Before Judges Rodriguez, Wells and Payne. On appeal from the Law Division, Morris County, L-2879-99. [Sat below: Judge Cramp.] DDS No. 04-2-3336 Rule of Professional Conduct 1.2(c) expressly permits an attorney, with the consent of the client after consultation, to limit the scope of representation, and the degree of care is then framed by the agreed-on service; it is not a breach of the standard of care for an attorney, under a signed, precisely drafted consent agreement, to agree not perform some services for a matrimonial client that he might otherwise perform absent such a consent; here, where plaintiff-client — who was competent, knowledgeable regarding the family finances, not the victim of domestic violence, and who had voluntarily submitted to mediation — after consultation with defendant-attorney, signed a letter that, although it did not cite RPC 1.2(c), clearly agreed to limit the scope of his representation — in that he would not engage in discovery or perform investigatory services with respect to the mediated property settlement that she presented to him for inclusion in the judgment of divorce, could not render an opinion on its fairness, and could not advise her whether to execute it — defendant did not breach any standard of attorney care, where the settlement did not violate the law or public policy and protected the children’s interests, although he should not have included in his letter the client’s undertaking not to sue him, which violated RPC 1.8(h), and should not have had her sign a separate, standard form of retainer agreement, since consent to limit the scope of representation under RPC 1.2(c) should be in a single, specifically tailored form of retainer agreement; when incorporation of a mediated settlement into a judgment of divorce is sought, either party’s consent to limit the scope of representation should be fully disclosed to the court and, if the court requests it, the executed retainer should be offered to the court for review. 172 N.J.L.J. 158 LICENSE PLATES (see CRIMINAL PRACTICE) LICENSES (see ADMINISTRATIVE LAW) LIENS (see BUSINESS LAW) LIFE SUPPORT (see CRIMINAL PRACTICE) LIMITATIONS OF ACTIONS (see ADMINISTRATIVE LAW, CIVIL PRACTICE, EMPLOYMENT LAW, LAND USE and PLANNING, WORKERS’ COMPENSATION) LIMITED REPRESENTATION (see LEGAL PROFESSION) MAINTENANCE BONDS (see LAND USE and PLANNING) MEDICAL MALPRACTICE (see TORTS) MARITAL LIFESTYLE (see FAMILY LAW) MATRIMONIAL ACTIONS (see LEGAL PROFESSION) MEDICAL MALPRACTICE (see CIVIL PRACTICE, EVIDENCE, TORTS) MEDICAL PROVIDERS (see WORKERS’ COMPENSATION) MINORITY SHAREHOLDERS (see TORTS) MORTGAGES (see CONSUMER PROTECTION, REAL PROPERTY) MOTOR VEHICLES (see CRIMINAL PRACTICE) MUNICIPALITIES (see GOVERNMENT, LAND USE and PLANNING, TORTS) NEGLIGENCE (see TORTS) NONCUMULATION CLAUSES (see INSURANCE LAW) NONECONOMIC DAMAGES (see TORTS) NONPROFIT ORGANIZATIONS (see TAXATION) NURSES (see EVIDENCE) ODORS (see REAL PROPERTY) OFFERS OF JUDGMENT (see ATTORNEYS’ FEES, TORTS) OPEN PUBLIC RECORDS (see GOVERNMENT) OSHA (see WORKERS’ COMPENSATION) PAINTBALL GUNS (see CRIMINAL PRACTICE) PARENTAGE (see FAMILY LAW) PENDENTE LITE SPOUSAL SUPPORT (see FAMILY LAW) PENSIONS (see FAMILY LAW) PERFORMANCE BONDS (see LAND USE and PLANNING) PERJURY (see CRIMINAL PRACTICE) PHYSICIANS (see CONSUMER PROTECTION) PIP (see INSURANCE LAW) PLEA AGREEMENTS (see CRIMINAL PRACTICE) POLICE (see CRIMINAL PRACTICE, GOVERNMENT) POOLS (see PRODUCT LIABILITY) POSSESSION (see CRIMINAL PRACTICE) POST-TRAUMATIC STRESS DISORDER (see WORKERS’ COMPENSATION) POWER OF ATTORNEY (see BUSINESS LAW) PRE-EMPTION (see REAL PROPERTY) PRE-EXISTING CONDITIONS (see TORTS) PREPAYMENT PENALTIES (see REAL PROPERTY) PRIOR STATEMENTS (see CRIMINAL PRACTICE) PRISON DISCIPLINE (see CRIMINAL PRACTICE) PRISONERS (see ADMINISTRATIVE LAW) PRODUCT LIABILITY — Asbestos Provini v. Asbestospray Corporation et al , A-1674-01T2; Appellate Division; opinion by Parker, J.A.D.; decided and approved for publication May 16, 2003. Before Judges Petrella, Parker and Bilder. On appeal from the Law Division, Middlesex County, L-10853-95. [Sat below: Judge Reavey.] DDS No. 32-2-3709 Where plaintiff’s decedent’s employment was limited to a short period of time over 25 years prior to his asbestos diagnosis, but plaintiff could not demonstrate that decedent was ever exposed to the product during his employment, the summary judgment in favor of defendants in this product-liability action is affirmed. 172 N.J.L.J. 673 PRODUCT LIABILITY — Pools — Statute of Repose Dziewiecki v. Bakula et al , A-2442-01T2; Appellate Division; opinion by Rodriguez, J.A.D.; decided and approved for publication June 5, 2003. Before Judges Havey, Rodriguez and Payne. On appeal from the Law Division, Mercer County, L-3284-98. [Sat below: Judge Smithson.] DDS No. 34-2-3904 The Statute of Repose applies only to parties constructing or erecting an improvement to real property and only with respect to work on the improvement itself, and nothing in its language, history, or intent insulates the manufacturer and/or seller of a product from liability when such product is used in or incorporated into an improvement to real estate; in this swimming-pool diving accident case, the trial court erred in dismissing plaintiff’s claims against the manufacturer/designer of the kit from which the pool was constructed and against the distributor/seller based on the 10-year bar of the statute, since plaintiff has submitted sufficient evidence to proceed on a products-liability action premised on a failure to provide adequate warnings; however, his claims against the distributor in its capacity as the pool’s installer, based on the installation or construction of the pool, are precluded by the statute because the installation was done more than 10 years before his injury. 172 N.J.L.J. 1080 PRODUCT LIABILITY — Warnings Levey v. Yamaha Motor Corporation, U.S.A. et al , A-6472-01T3; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication June 24, 2003. Before Judges Skillman, Cuff and Winkelstein. On appeal from the Law Division, Ocean County, L-525-99. [Sat below: Judge Ford.] DDS No. 32-2-4099 A determination of the adequacy of a seller’s instructions and warnings requires consideration of all the seller’s communications to intended users, including demonstrations of the product, and a product demonstration that violates a seller’s safety warnings in the printed instructions and warnings accompanying its product may be found to have undermined the effectiveness of those warnings; here, a trier of fact could find that the demonstration of defendant-distributor’s boat by its district sales representative to defendant-retailer’s salesmen in violation of its safety warnings undermined the effectiveness of the printed warnings accompanying the boat, and that the demonstration was a proximate cause of the allegedly unsafe demonstration by the retailer’s salesman that resulted in the injuries to plaintiff, a passenger in the boat, and the summary judgment granted to the distributor is reversed and the matter is remanded for trial. 172 N.J.L.J. 1284 PROFESSIONALS (see CONSUMER PROTECTION) PROPERTY SETTLEMENTS (see FAMILY LAW) PROPERTY TAX (see TAXATION) PROSECUTORS (see CRIMINAL PRACTICE) PSYCHOLOGICAL PARENTS (see FAMILY LAW) PUBLIC BIDDING (see SCHOOLS and EDUCATION) PUBLIC DEFENDER (see GOVERNMENT) PUBLIC OFFICERS (see GOVERNMENT) PUBLIC OFFICIALS (see CRIMINAL PRACTICE) PUBLIC TRUST (see GOVERNMENT) PUNITIVE DAMAGES (see TORTS) RACIAL DIVERSITY (see SCHOOLS and EDUCATION) REAL ESTATE — Judges — Landlord and Tenant — Relocation Expenses Miah v. Ahmed , A-4442-01T3; Appellate Division; opinion by Petrella, P.J.A.D.; decided and approved for publication April 4, 2003. Before Judges Petrella, Lintner and Parker. On appeal from the Law Division, Special Civil Part, Passaic County, LT-1856-02. [Sat below: Judge Rohde.] DDS No. 27-2-3323 Under N.J.S.A. 2A:18-61.1h, which provides for reimbursement for relocation expenses of up to six months’ rent to a tenant displaced because of an illegal occupancy, any relocation expenses must be based on actual out-of-pocket expenses incurred by the tenant, and in this action to evict a tenant because his occupancy was illegal under the local ordinances, the trial judge erred in ordering that the full six months’ rent, which he had erroneously required the landlord to deposit into court pending the outcome of the proceeding, be turned over to the tenant, without proof of actual damages; moreover, the judge erred in interceding to ensure that the money was turned over immediately to the tenant, especially since he had clearly been advised that an appeal would be filed promptly; further, the judge erred in not allowing the landlord to collect the rent for the three months beyond the six months that the tenant stayed in the property without paying rent after refusing to leave; the matter is reversed and remanded for an order directing the tenant to return the money to the trial court pending a hearing, before a different judge, on the actual expenses incurred. 172 N.J.L.J. 136 REAL PROPERTY — Bankruptcy — Foreclosures Cho Hung Bank v. Kim , A-5720-01T3; Appellate Division; opinion by Landau, J.A.D., retired and temporarily assigned on recall; decided and approved for publication June 25, 2003. Before Judges Kestin, Fall and Landau. On appeal from the Chancery Division, Bergen County, F-4148-00. [Sat below: Judge Simon.] DDS No. 15-2-4104 Where the foreclosure complaint was filed while defendants where in bankruptcy but the default judgment was entered after the bankruptcy action was closed, defendants’ motion to vacate the judgment based on plaintiff’s failure to obtain an order of relief from the automatic-stay provisions of the Bankruptcy Code should have been granted; because of inconsistencies in the amount due, insufficiencies in the notice of intention sent to defendants, and a factual issue as to whether defendants resided in the property, thereby determining whether the Fair Foreclosure Act applies, the foreclosure judgment is dismissed and the case remanded. 172 N.J.L.J. 1313 REAL PROPERTY — Deed Restrictions — Laches Cooper River Plaza East, L.L.C. v. The Briad Group et al , A-3048-01T1; Appellate Division; opinion by Payne, J.A.D.; decided and approved for publication April 30, 2003. Before Judges Havey, Rodriguez and Payne. On appeal from the Chancery Division, Camden County, C-94-01. [Sat below: Judge Davis.] DDS No. 34-2-3583 A deed restriction meant to bind subsequent purchasers that are strangers to the initial transaction must manifest its intent in the language of the document, and an ambiguity cannot bind a subsequent purchaser who, as a result of the lack of clarity in the instrument of conveyance, lacks notice, and the testimony of the parties to the initial sale as to their undisclosed intent is irrelevant; here, the nonspecific language of the deed restriction and the varying interpretations placed on that language provide ample grounds for the trial court’s conclusion that it was ambiguous and therefore unenforceable against defendant, a subsequent purchaser; moreover, in denying relief to plaintiff, the trial court appropriately weighed the facts that the remedy of reversion, specified in the deed, would result in extreme hardship to defendant while the alleged violation was de minimus. Here, where plaintiff had notice of the proposed location of the restaurant and perceived a violation of the setback restriction in the deed when construction commenced, but did not give notice to defendant, a stranger to the initial sale of the property, of that violation until construction was substantially complete, the trial court appropriately applied the doctrine of laches, and its determination to bar suit on that alternative ground is affirmed. 172 N.J.L.J. 414 REAL PROPERTY — Eviction — Landlord and Tenant — Odors Ivy Hill Park Section III v. Smirnova et al , LT 40063-02; Law Division, Special Civil Part, Essex County; opinion by Fast, J.S.C.; decided March 3, 2003; approved for publication June 24, 2003. DDS No. 27-3-4092 Defendant-tenants may not be evicted pursuant to N.J.S.A. 2A:18-61.1c for having caused damage either willfully or through gross negligence here, where the damage alleged is the odor of boiling urine and a melted pot handle that fouled the air in the apartment building, since, although defendants’ conduct was grossly negligent, “damage or destruction” under the statute does not contemplate an adverse affect on the human senses, but damage to tangible property. 172 N.J.L.J. 1319 REAL PROPERTY — Mortgages — Preemption — Prepayment Penalties Glukowsky v. Equity One, Inc. , A-3202-01T3; Appellate Division; opinion by King, P.J.A.D.; decided and approved for publication April 24, 2003. Before Judges King, Wefing and Lisa. On appeal from the Law Division, Gloucester County, L-872-01. [Sat below: Judge Donald A. Smith Jr.] DDS No. 15-2-3513 The New Jersey Prepayment Law’s prohibition against mortgage prepayment penalties is not preempted by 12 C.F.R. § 560.220, which permits federally chartered housing creditors to collect prepayment penalties, since this regulation exceeds the scope of authority Congress delegated to the Office of Thrift Supervision under the Alternative Mortgage Transactions Parity Act; the dismissal of the complaint on federal preemption grounds is reversed, and plaintiff’s claims that the prepayment penalty in his balloon mortgage violates the Prepayment Law is remanded for further proceedings; however, the dismissal of plaintiff’s claim under the Market Rate Consumer Loan Act is affirmed because defendant, as a mortgage broker, is not covered by the statute; on remand, plaintiff is permitted to amend the complaint to assert claims under the federal due-on-sale regulation, regulations under New Jersey’s Licensed Lenders Act, and general contract principles prohibiting unconscionable contract terms. 172 N.J.L.J. 395 REFORMATION (see TRUSTS and ESTATES) REGIONAL SCHOOL DISTRICTS (see SCHOOLS and EDUCATION) REHABILITATION (see INSURANCE LAW) RELIEF FROM JUDGMENTS (see FAMILY LAW) RELIGIOUS CONTRACTS (see FAMILY LAW) RELOCATION EXPENSES (see REAL ESTATE) REMEDIES (see CONTRACTS, LAND USE and PLANNING) RESPONDEAT SUPERIOR (see TORTS) RESTRICTIVE COVENANTS (see EMPLOYMENT LAW) RETROACTIVITY (see FAMILY LAW) RIGHT OF CONFRONTATION (see CRIMINAL PRACTICE) RULE-MAKING (see ADMINISTRATIVE LAW) SANCTIONS (see LEGAL PROFESSION) SCHOOL ZONES (see CRIMINAL PRACTICE) SCHOOLS (see GOVERNMENT) SCHOOLS and EDUCATION — Boards of Chosen Freeholders — County Colleges — Funding Warren County Community College v. Warren County Board of Chosen Freeholders , A-121/122 September Term 2001; Supreme Court; opinion by LaVecchia, J.; concurrence by Verniero, J.; decided June 19, 2003. On certification to the Appellate Division, 350 N.J. Super. 489 (App. Div. 2002). [Sat below: Judges Petrella, Steinberg and Alley in the Appellate Division; Judge Seybolt in the Law Division.] DDS No. 16-1-4057 Because Warren County Community College was established without an opportunity for public input, as contemplated by the legislative scheme in N.J.S.A. 18A:64A-1 to -25, and because the statutory power to mandate appropriations through the certification authority of the college’s board of school estimate impacts the freeholders’ authority to levy local taxes, the college’s board of school estimate does not have the authority to, and constitutionally cannot, compel the county’s board of chosen freeholders to appropriate funds for a capital project for the college; had there been an opportunity for public input as the legislative scheme envisions, there would be no constitutional infirmity with the statute’s application in Warren County, and the Appellate Division’s finding that the statutory scheme is unconstitutional as applied in a county having only three freeholders is disagreed with; despite the procedural irregularity that occurred in the college’s formation, it shall not lose its status, except in respect of the one constitutional problem that inhibits the full exercise of its statutory powers. 172 N.J.L.J. 1204 SCHOOLS and EDUCATION — Contracts — Public Bidding Benjamin R. Harvey Co. Inc. v. Board of Education of Spring Lake Heights School District , MON-L-5259-02; Law Division, Monmouth County; opinion by Lawson, A.J.S.C.; decided November 21, 2002; approved for publication March 14, 2003. DDS No. 16-3-3298 Defendant-board of education did not abuse its discretion in permitting the successful bidder for the general work on a construction project to cure a deficiency in an attachment to its bid document (concerning the percentage of work that it would perform with its own work force), since the deficiency was immaterial and did not deprive the board of its assurance that the contract would be performed according to the specifications, and the board’s actions did not undermine the competitive bidding process by placing one bidder in a position of advantage over another; to disqualify the lowest bidder for an immaterial deficiency would be contrary to the public interest by depriving the taxpayers of thousands of dollars. 172 N.J.L.J. 48 SCHOOLS and EDUCATION — Racial Diversity — Regional School Districts — Withdrawal In the Matter of the Withdrawal of North Haledon School District, etc. , A-3582-01T5, A-3597-01T5, A-270-02T5; Appellate Division; opinion by Cuff, J.A.D.; decided and approved for publication May 15, 2003. Before Judges Skillman, Cuff and Winkelstein. On appeal from the Department of Education, Board of Review (A-3582-01 and A-3597-01) and from the Law Division, Passaic County, L-4467-02 (A-270-02). [Sat below: Judge McVeigh.] DDS No. 16-2-3696 Maintenance of a diverse student population is a critical element in the delivery of a thorough and efficient education, and the present racial and ethnic composition of the student body and trends in the student population are valid factors to be considered by a board of review when considering the effect of a proposed withdrawal from a regional high school, and whether to grant or withhold permission to present the issue to the voters; here, where petitioner seeks to withdraw its students from the limited-purpose regional high school district of which it is a member, the 9% decrease in the white population of the high school that would result cannot be considered a negligible impact on the education program; coupled with the demographic data showing a substantial increase in the nonwhite population in the remaining towns, the board of review misperceived not only the impact on the racial diversity of the school by the withdrawal but also its obligation to refrain from actions that would exacerbate that imbalance, and the order allowing a referendum on the withdrawal is reversed. 172 N.J.L.J. 671 SEARCH AND SEIZURE (see CRIMINAL PRACTICE) SENTENCING (see CRIMINAL PRACTICE) SERVICE (see CIVIL PRACTICE) SETTLEMENTS (see APPEALS, CIVIL PRACTICE, WORKERS’ COMPENSATION) SEX OFFENDERS (see CRIMINAL PRACTICE) SEXUAL ASSAULT (see CRIMINAL PRACTICE) SEXUALLY VIOLENT PREDATORS (see CRIMINAL PRACTICE) SIDEWALKS (see TORTS) SKI STATUTE (see TORTS) SNOWBOARDING (see TORTS) SOCIAL GUESTS (see TORTS) SPECIAL MASTERS (see LAND USE and PLANNING) SPECIAL SERVICE CHARGES (see GOVERNMENT) STATE CONSTITUTION (see GOVERNMENT) STATUTE OF REPOSE (see PRODUCT LIABILITY) STEP-DOWN CLAUSES (see INSURANCE LAW) SUBDIVISION APPROVAL (see LAND USE and PLANNING) SUBSTANTIAL COMPLIANCE (see CIVIL PRACTICE, INSURANCE LAW) SUPERVISORS (see EMPLOYMENT LAW) TAX FARMING (see TAXATION) TAX-SALE CERTIFICATES (see TAXATION) TAXATION — Farmland Assessments Board of Education of the Township of South Brunswick v. Eckert et al , A-5643-01T3; Appellate Division; opinion by Carchman, J.A.D.; decided and approved for publication June 17, 2003. Before Judges Conley, Carchman and Parrillo. On appeal from the Law Division, Middlesex County, L-7627-00. [Sat below: Judge Longhi.] DDS No. 44-2-4024 Where the school board sought to condemn defendant’s property, which had been assessed as farmland, the board, rather than defendant, is liable for rollback taxes imposed once the property stopped being farmed; the cessation of farming operations in reasonable anticipation of the ensuing condemnation does not comprise a change of use warranting imposition of the rollback taxes on the condemnee; the judgment of the trial court is affirmed. 172 N.J.L.J. 1310 TAXATION — Health-Care Providers — Non-Profit Organizations — Property Tax Southern Jersey Family Medical Center v. City of Pleasantville , A-28 September Term 2002; Supreme Court; per curiam opinion; decided May 13, 2003. On certification to the Appellate Division, 351 N.J. Super. 262 (App. Div. 2002). [Sat below: Judges King, Cuff and Winkelstein in the Appellate Division; Judge Small in the Tax Court.] DDS No. 35-1-3675 The judgment of the Appellate Division, reversing the decision of the Tax Court, is affirmed; plaintiff, a community health-care facility that provides health and dental care irrespective of a patient’s ability to pay and organized as a nonprofit corporation pursuant to N.J.S.A. 15-1 to -15, did not qualify for an exemption from local property taxes for the 1999 tax year; plaintiff’s certificate of incorporation demonstrates that it is organized exclusively for a charitable purpose, it is a nonprofit entity, and it is actually and exclusively used for a tax-exempt purpose; plaintiff’s receipt of 85 percent of its revenue from federal and state sources (including Medicare and Medicaid) does not diminish the charitable nature of the services, since the bulk of these government funds were payments for services rendered to people who otherwise would not receive care, would go to hospital emergency rooms, or to whom the government might be compelled to provide services directly; nor does receiving less than 1 percent of its revenue from charitable donations disqualify it from receiving the tax exemption — there is no authority to require significant private donations as a determining factor for a tax exemption under N.J.S.A. 54:4-3.6. 172 N.J.L.J. 687 TAXATION — Tax Farming — Tax-Sale Certificates Varsolona v. Breen Capital Services Corp. et al, etc. , A-6760-00T5, A-6829-00T5, A-2800-01T5, A-2893-01T5, A-2970-01T5, A-3442-01T5; Appellate Division; opinion by Coburn, J.A.D.; decided and approved for publication May 21, 2003. Before Judges Coburn, Collester and Alley. On appeal from the Law Division, Hudson County, L-2552-98 and L-3117-00. [Sat below: Judge Fuentes.] DDS No. 35-2-3743 Neither the Tax Sale Act nor public policy requires the invalidation of private installment-payment plans (IPPs) between the owners of property subject to liens imposed by tax-sale certificates (TSCs), and servicers which pursue the collection of the TSCs and, if necessary, foreclosure, on behalf of the trusts that purchase bundles of TSCs as a part of the privatization of real estate tax collection (or “tax farming”), and the trial court erred in finding that the IPPs here were illegal; the IPPs enhance the value of TSCs, thereby improving the municipality’s tax-collection efforts, and owners are protected by the Act against fraud and excess fees. 172 N.J.L.J. 780 TELECOMMUNICATIONS (see LAND USE and PLANNING) TELECOMMUNICATIONS CARRIERS (see LAND USE and PLANNING) TERMINATION OF PARENTAL RIGHTS (see FAMILY LAW) TESTIFYING IN RESTRAINTS (see CRIMINAL PRACTICE) TIRES (see CONSUMER PROTECTION) TITLE SEARCHES (see LAND USE and PLANNING) TORT CLAIMS ACT (see TORTS) TORTS (see also WORKERS’ COMPENSATION) TORTS — Automobiles — Evidence — Negligence — Punitive Damages Dong v. Alape , A-6264-00T3; Appellate Division; opinion by Lisa, J.A.D.; decided and approved for publication June 9, 2003. Before Judges King, Lisa and Fuentes. On appeal from the Law Division, Middlesex County, L-4789-99. [Sat below: Judge Epstein.] DDS No. 60-2-3924 In this hit-and-run personal injury case, viewing all of the evidence, together with all reasonable inferences, most favorably to plaintiff, he presented sufficient evidence to enable a jury to rationally find, by clear and convincing evidence, that defendant was intoxicated at the time of the accident, that his intoxication was a cause of the accident, and that sufficient aggravating circumstances were present to establish that defendant’s conduct was accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by his conduct, and thus to support a punitive damages award, and the dismissal of plaintiff’s punitive damages count is reversed; the trial judge also erred in reversing his original position and permitting, after plaintiff had rested his case, the defense to play a videotape that contradicted plaintiff’s testimony and claims of injury that had not been produced during discovery, and the error was not harmless since it had the clear capacity to cause an unjust result here, where plaintiff had reasonably relied on the judge’s initial ruling, and, had he known that it would be shown, plaintiff’s counsel would have adjusted his presentation, and the compensatory damages judgment is reversed. 172 N.J.L.J. 1078 TORTS — Bankruptcy — Minority Shareholders Weil v. Express Container Corporation et al , A-254-01T1; Appellate Division; opinion by Hoens, J.A.D.; decided and approved for publication May 21, 2003. Before Judges Wallace, Ciancia and Hoens. On appeal from the Chancery Division, Bergen County, C-150-97E. [Sat below: Judge Escala.] DDS No. 12-2-3741 Although the bankruptcy judge’s remand of plaintiff’s claims of minority-shareholder oppression, etc., to state court was appropriate, that merely determined that her claims had not been extinguished by the operation of the Bankruptcy Act; N.J.S.A. 14A:11-1 et seq. includes no form of the relief plaintiff seeks and no precedent suggests that, following the dissolution of a corporation in bankruptcy, any remedy can be appropriately asserted against a former majority shareholder personally, nor is there any reason why the statutory remedies should be so vastly expanded in this intra-family matter; the Chancery Division judge correctly granted defendants’ motion for summary judgment. 172 N.J.L.J. 680 TORTS — Commercial Property Owners — Municipalities — Sidewalks — Tort Claims Act Gaskill v. Active Environmental Technologies, Inc., et al , A-5155-01T3; Appellate Division; opinion by Axelrad, J.T.C. (temporarily assigned); decided and approved for publication June 4, 2003. Before Justice Wallace (temporarily assigned) and Judges Ciancia and Axelrad. On appeal from the Law Division, Burlington County, L-1546-01. [Sat below: Judge Sweeney.] DDS No. 31-2-3889 The evidence presents a debatable question as to whether the one-inch raised tree grate around a tree that had been planted in the paved surface between the buildings and the street, over which plaintiff tripped and fell, fracturing her right elbow, is structurally an integral part of the sidewalk and is used as a pedestrian walkway or for ingress and egress to defendant-abutting commercial property, and the trial court erred in granting defendant-commercial property owner summary judgment; however, the summary judgment granted defendant-township is affirmed, since there is no evidence that the township had constructive or actual notice of the raised grate, and plaintiff failed to present a prima facie case that the inaction by the township in repairing the allegedly dangerous condition was palpably unreasonable; further, plaintiff has failed to meet the Tort Claims Act threshold for recovery of noneconomic damages, i.e., objective permanent injury and permanent loss of a bodily function that is substantial. 172 N.J.L.J. 1094 TORTS — Damages O’Brien (Newark) Cogeneration, Inc. v. Automatic Sprinkler Corporation of America et al , A-5450-01T5; Appellate Division; opinion by Lefelt, J.A.D.; decided and approved for publication June 24, 2003. Before Judges Skillman, Cuff and Lefelt. On appeal from the Law Division, Essex County, L-3128-95. [Sat below: Judge Ferentz.] DDS No. 31-2-4095 Where a fire ignited at plaintiff’s cogeneration plant and plaintiff brought an action against various defendants responsible for the maintenance and installation of equipment at the plant, the dismissal of plaintiff’s complaint against the installer of the sprinkler system for failing to apportion damages among each of the defendants is reversed; based on plaintiff’s innocence in causing the injury, defendants’ greater knowledge of the materials, equipment and procedures employed in operating the plant, and the unitary harm caused by defendants’ concurrent misconduct, the burden to apportion damages should have been shifted to defendants rather than dismissing the complaint. 172 N.J.L.J. 1311 TORTS — Delivery Persons — Negligence La Russa v. Four Points at Sheraton Hotel et al , A-4219-01T3; Appellate Division; opinion by Carchman, J.A.D.; decided and approved for publication May 14, 2003. Before Judges Conley, Newman and Carchman. On appeal from the Law Division, Morris County, L-719-99. [Sat below: Judge Cramp.] DDS No. 31-2-3687 Here, where a person making a beer delivery to defendant-hotel tracked in sufficient snow and water to cover an area of approximately five feet at a depth of one-eighth inch, in which plaintiff, a hotel employee, subsequently slipped and fell, the delivery person had a duty to notify the hotel of the obvious danger he had caused, which was easily foreseeable; the opportunity to notify and ensure prevention was readily available and not burdensome or unreasonable, and the fairness of imposing such a duty is indisputable, so the dismissal of the complaint is reversed and the matter is remanded for a trial on the merits. 172 N.J.L.J. 583 TORTS — Divorce — Jurisdiction — Offers of Judgment Borchert v. Borchert , MER-FM-11-383-99; Chancery Division, Family Part, Mercer County; opinion by LeWinn, J.S.C.; decided February 28, 2002; approved for publication May 14, 2003. DDS No. 20-4-3973 The Family Part may properly assert jurisdiction over marital-tort claims as a matter of case management, but that assertion of jurisdiction does not automatically render the tort claim a “matrimonial action” for Rule 4:58-1 purposes, and here, where the parties agreed to submit the tort claim to arbitration under Rule 4:21A-1(b), defendant’s marital-tort claim of malicious prosecution may properly be submitted to the offer-of-judgment procedure in Rule 4:58-1 et seq. — the “except in a matrimonial action” language in the rule does not bar its application here. 172 N.J.L.J. 791 TORTS — Dog Bites — Landlord/Tenant — Respondeat Superior Zukowitz v. Halperin et al , A-2861-01T1; Appellate Division; opinion by Wecker, J.A.D.; decided and approved for publication May 5, 2003. Before Judges King, Wecker and Lisa. On appeal from the Law Division, Union County, L-8320-00. [Sat below: Judge Pisansky.] DDS No. 31-2-3614 The trial judge erred in dismissing plaintiff’s common-law claim against her landlord for damages incurred when she was bitten by a dog owned by the building superintendents employed by the landlord; Hyun Ha Seo is distinguishable and does not govern here, where the superintendents were acting within the scope of their authority when they accepted complaints from tenants (such as the leak in plaintiff’s apartment) at the door of their apartment, and their not being named as defendants is legally irrelevant to the landlord’s liability for their conduct under the doctrine of respondeat superior — whether they were negligent in allowing the dog to get out the door is plainly a jury question. 172 N.J.L.J. 502 TORTS — Emergency Medical Technicians Shehaiber et al v. University of Medicine and Dentistry of New Jersey et al , A-4598-01T3; Appellate Division; opinion by Pressler, P.J.A.D.; decided and approved for publication May 23, 2003. Before Judges Pressler, Bilder and Hoens. On appeal from the Law Division, Essex County, L-10193-97. [Sat below: Judge Simon.] DDS No. 31-2-3786 The duty of EMTs is to perform those services for which they are trained or are otherwise required by law to render, and since they are not required to be trained in or to perform water rescues they cannot be charged with the duty to attempt a water rescue, and thus cannot be held liable for not volunteering to do so; as a matter of law, no duty existed here. 172 N.J.L.J. 780 TORTS — HIV — Jury Instructions — Medical Malpractice Doe v. Arts et al , A-6437-00T1; Appellate Division; opinion by Stern, P.J.A.D.; decided and approved for publication June 2, 2003. Before Judges Stern, Coburn and Collester. On appeal from the Law Division, Middlesex County, L-224-95. [Sat below: Judge Garruto.] DDS No. 29-2-3861 In this action to recover for physical and psychological injuries allegedly incurred after defendant-doctor incorrectly read the results of a blood test and told plaintiff that he was HIV-positive when he was not (which he learned three years later), and failed to retest him, and referred him to a hospital that also failed to retest him and that referred him to another hospital that treated him but also failed to retest him, there is sufficient evidence to support the jury’s finding that defendant had deviated from generally accepted standards of practice — in failing to give plaintiff pre- and post-test counseling, by misrepresenting the test results, by incorrectly advising him that he was HIV-positive, and by giving the results over the phone — and that his deviation was a proximate cause of plaintiff’s damages; defendant’s motion for a new trial was properly denied and there was no error in the instruction that if the jury found defendant negligent, he could be responsible for all of plaintiff’s damages and that the jury could consider alleged damages from plaintiff’s distress that occurred even after he learned that he was HIV-negative; Williamson v. Waldman, which limits emotional-distress damages in “fear of AIDS cases,” is not applicable here. 172 N.J.L.J. 995 TORTS — Homeowners — Landowner Liability — Social Guests Parks v. Rogers , A-140 September Term 2001; Supreme Court; opinion by Albin, J.; dissent by Verniero, J.; decided June 18, 2003. On certification to the Appellate Division. [Sat below: Judges Landau and Kimmelman in the Appellate Division; Judge Mark J. Nelson in the Law Division.] DDS No. 31-1-4048 A homeowner has a duty to warn the unwary social guest of a condition of the premises that the homeowner knows or has reason to know creates an unreasonable risk of injury, and the correct inquiry is first, whether defendants knew of the condition of the property in question, and second, whether defendants should have realized that the defective condition posed an unreasonable risk of harm to a guest unaware of the danger through the ordinary use of her faculties; where plaintiff fell down the stairs because of a short handrail, the trial court applied an incorrect standard when it found that plaintiff could not show that defendant had actual knowledge of the dangerous condition of the handrail; while the Appellate Division applied the correct standard, it was for the jury to determine whether plaintiff was aware of the dangerous condition of the handrail or should have been aware by a reasonable use of her faculties, and its order affirming the summary judgment in favor of defendants is reversed. 172 N.J.L.J. 1206 TORTS — Independent Contractors — Tort Claims Act Muhammad v. New Jersey Transit , A-129 September Term 2001; Supreme Court; opinion by Albin, J.; decided May 14, 2003. On certification to the Appellate Division. [Sat below: Judges Havey, Coburn and Weissbard in the Appellate Division.] DDS No. 36-1-3689 Where New Jersey Transit, a public entity under the New Jersey Tort Claims Act, hired plaintiff’s employer to remove asbestos from the roof of one of its garages, it did not act in a palpably unreasonable manner when it advised the employer, but not plaintiff, of the unsafe condition of the roof, expecting the employer to inform its employees of the dangers inherent to the project. 172 N.J.L.J. 688 TORTS — Medical Malpractice — Pre-existing Conditions Okulicz v. DeGraaff , A-5959-00T5; Appellate Division; opinion by Collester, J.A.D.; decided and approved for publication June 25, 2003. Before Judges Stern, Coburn and Collester. On appeal from the Law Division, Essex County, L-2520-98. [Sat below: Judge Thomas C. Brown.] DDS No. 29-2-4113 Where the jury found that defendant-doctor deviated from accepted medical standards (either by failing to inform plaintiff’s decedent of the fact that the mass found on her ovary while she was pregnant could be cancerous and that delay could pose greater danger, or by failing to follow up and ensure that the mass was removed after delivery), and the expert testimony indicated that the risk of the growth of the tumor and possibility of metasticity increased by defendant’s negligence, the jury’s finding that the deviation did not increase the risk of harm imposed by decedent’s pre-existing condition is factually inconsistent and indicates jury confusion; the judgment for defendant is reversed and the matter is remanded for a new trial; this case is similar to Evers v. Dollinger, in which the Court found that the growth in size of the tumor was a compensable injury. 172 N.J.L.J. 1310 TORTS — Municipalities — Non-Economic Damages — Tort Claims Act Knowles v. Mantua Township Soccer Association et al , A-128 September Term 2001; Supreme Court; opinion by Coleman, J.; dissent by Verniero, J.; decided May 29, 2003. On certification to the Appellate Division. [Sat below: Judges Cuff and Bilder in the Appellate Division; Judge McDonnell in the Law Division.] DDS No. 36-1-3830 Plaintiff, who was injured when a gate in a park maintained by defendant-township swung and struck his car as he was leaving the park, has provided sufficient objective medical evidence of injuries to establish a prima facie case that he suffered an injury that meets the Tort Claims Act threshold, entitling him to damages for pain and suffering, and the Appellate Division erred in affirming the trial court’s dismissal of the case; viewing the evidence in the light most favorable to him, plaintiff, who has undergone extensive medical testing that revealed lumbar disc herniations and radiculopathy that his doctors conclude is permanent, met the first prong of the Brooks/Gilhooley test by presenting evidence of “an objective permanent injury,” and he has presented evidence of permanent injuries — the lack of feeling in his left leg and the inability to stand, sit, or walk comfortably for a substantial amount of time, engage in athletics, and complete household chores — that are severe enough to meet the second prong of the test, a permanent loss of a bodily function that is substantial. 172 N.J.L.J. 969 TORTS — Ski Statute — Snowboarding Murray v. Great Gorge Resort, Inc. , SSX-L-322-01; Law Division, Sussex County; opinion by Graves, J.S.C.; decided January 10, 2003; approved for publication May 14, 2003. DDS No. 31-3-3742 Although not mentioned in the Ski Statute, its underlying goals would be frustrated by excluding snowboarding; here, where plaintiff is suing the owner of the ski area on which he was injured, a jury must determine if the dirt area where he fell was an inherent risk of snowboarding or an obvious, man-made hazard that defendant could have removed, eliminated or reduced, and whether defendant violated its express or implied statutory duties, thereby entitling plaintiff to recover under principles of comparative negligence, by failing to conduct an inspection, failing to provide information concerning trail conditions, and failing to warn of a potential danger. 172 N.J.L.J. 689 TRADEMARKS (see INSURANCE LAW) TRANSCRIPTS (see GOVERNMENT) TRIALS DE NOVO (see CIVIL PRACTICE, CRIMINAL PRACTICE) TRUSTS and ESTATES (see ATTORNEYS’ FEES) TRUSTS and ESTATES — Children — Constructive Trusts — Insurance Proceeds Flanigan v. Munson , A-21 September Term 2002; Supreme Court; opinion by Verniero, J.; decided April 3, 2003. On appeal from the Appellate Division. [Sat below: Judges Conley, Lisa and Rodriguez in the Appellate Division; Judge Langlois in the Law Division.] DDS No. 38-1-3319 Constructive trusts are a powerful equitable tool to be used only when the equities of a given case clearly warrant it; here, where the property settlement between the children’s biological parents provided that they be named irrevocable beneficiaries (until emancipation) on “any” life insurance policy that either parent obtained through employment, and that it “shall bind heirs, next of kin, executors and administrators,” the settlement unambiguously establishes the children’s right to the proceeds of both insurance policies obtained by their mother through her employer, although one was provided by the employer and the other she purchased with payroll deductions, and, as third-party beneficiaries of the settlement, they have standing to enforce its terms; here, where the subsequently deceased mother’s failure to have named her children as beneficiaries on the policy she purchased was a wrongful act, and the transfer of the policy proceeds to defendant, her second husband, unjustly enriched him (that her paying the premiums reduced their joint household income did not vest him with an interest superior to the children’s), the constructive trust in favor of the children ordered by the Appellate Division is the appropriate remedy here, and is in accord with New Jersey’s long-standing policy of providing for the care and financial security of children in these circumstances. 172 N.J.L.J. 132 TRUSTS and ESTATES — Reformation In the Matter of the Estate of Passoff , MON-P-205-02; Chancery Division, Probate Part, Monmouth County; opinion by Fisher, P.J.Ch.; decided November 6, 2002; approved for publication March 7, 2003. DDS No. 38-4-3111 In this action by the executor of decedent’s estate and the trustee of her life insurance trust to reform her will to invalidate its forgiveness of a debt owed to the estate by one of her daughters pursuant to a mortgage, where the estate is insolvent and incapable of paying specific bequests, the will is ordered reformed to invalidate the forgiveness of the debt since doing so furthers decedent’s overarching intent to treat her daughters equally, an intent that is apparent from a review of the will and the trust; however, plaintiffs’ request for a direction that the trust funds due that daughter be used to immediately satisfy the debt is denied, since there is nothing to indicate that the obligation is in default or that the decedent intended that the debt should be accelerated upon her death; moreover, the spendthrift provision of the trust prohibits its use in the manner sought by plaintiffs. 172 N.J.L.J. 49 UNDUE INFLUENCE (see ATTORNEYS’ FEES) UNEMPLOYMENT COMPENSATION (see EMPLOYMENT LAW) UNINSURED MOTOR VEHICLES (see INSURANCE LAW) UNINSURED/UNDERINSURED COVERAGE (see INSURANCE LAW) VARIANCES (see LAND USE and PLANNING) VEHICULAR HOMICIDE (see CRIMINAL PRACTICE) VERBAL THRESHOLD (see CIVIL PRACTICE) VIDEO TESTIMONY (see CRIMINAL PRACTICE) VISITATION (see FAMILY LAW) VOTERS (see GOVERNMENT) WAIVER (see FAMILY LAW) WARNINGS (see PRODUCT LIABILITY) WEAPONS (see CRIMINAL PRACTICE) WETLANDS (see ADMINISTRATIVE LAW) WILLS (see FAMILY LAW) WITHDRAWAL (see SCHOOLS and EDUCATION) WITNESSES (see CRIMINAL PRACTICE) WORKERS’ COMPENSATION — Amputations — Fingers Martinez v. Silverline , A-6057-01T3; Appellate Division; opinion by Skillman, J.A.D.; decided and approved for publication June 9, 2003. Before Judges Skillman, Cuff and Lefelt. On appeal from New Jersey Department of Labor, Division of Workers’ Compensation. DDS No. 39-2-3934 The Workers’ Compensation Act treats the amputation of all five fingers on a hand as equivalent to amputation of the hand, and petitioner, who had all five fingers of her right hand amputated when the glove she was wearing got caught in the circular saw she was operating during the course of her employment, is entitled to the additional “amputation” bonus provided under N.J.S.A. 34:15-12(c)(21). 172 N.J.L.J. 1096 WORKERS’ COMPENSATION — Checks — Limitations of Actions Bey v. Truss Systems, Inc. , A-2581-01T3; Appellate Division; opinion by Collester, J.A.D.; decided and approved for publication May 23, 2003. Before Judges Stern, Collester and Alley. On appeal from the Division of Workers’ Compensation, Department of Labor. [Sat below: Judge Andrew M. Smith Jr.] DDS No. 39-2-3794 The fact of petitioner’s incarceration did not extend the jurisdictional time limitation for reopening or modifying a formal workers’ compensation award, and since the date petitioner last received a payment resulting from the order approving the settlement of his initial claim was the date it was posted and delivered to his residence, which was more than two years before he filed his petition for modification, it was correctly dismissed for lack of jurisdiction — to adopt petitioner’s position that he did not receive the last payment until he physically possessed or negotiated the check would add uncertainty to the time requirement of N.J.S.A. 34:15-27; moreover, petitioner’s dominion and control over that payment is clear from his having authorized his landlord to negotiate the prior check. 172 N.J.L.J. 779 WORKERS’ COMPENSATION — Consumer Products — Torts Tomeo v. Thomas Whitesell Construction Co., Inc. , A-25 September Term 2002; Supreme Court; opinion by Coleman, J.; dissents by Zazzali and Albin, JJ.; decided May 22, 2003. On certification to the Appellate Division. [Sat below: Judges Havey, Braithwaite and Coburn in the Appellate Division; Judge Drozdowski in the Law Division.] DDS No. 39-1-3771 Here, where plaintiff, hired to install sprinkler devices in commercial buildings, was assigned to remove snow from his employer’s premises using a snow blower on which the safety lever had been deactivated by taping it to the handlebar in the operational position, and he sued in tort because his fingers where injured when he put his hand into the blower chute to unclog snow while the propeller was turning, the Appellate Division correctly held that summary judgment should have been granted to defendant because, applying the two-pronged test of Milliston and Laidlow, and assuming that defendant was responsible for deactivating the safety lever, there was no evidence that it acted with knowledge that it was substantially certain that a worker would suffer injury, or that plaintiff’s injury was anything more than a fact of life of industrial employment and plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize under N.J.S.A. 34:15-8 — moreover, the snow blower was not a piece of industrial machinery but a consumer product, which bore clear warning labels, and defendant’s inserting his hand, notwithstanding the warning labels and the obviousness of the danger, can be considered an intervening cause of the injury and can be considered in analyzing the statutory immunity; the alleged conduct was at most grossly negligent, which does not satisfy the “intentional wrong” requirement of the statute; nor can the context prong, which is a legal determination, be satisfied here since plaintiff knew or should have known that the propellers were operating when he inserted his hand into the chute, the labels clearly warned him of the danger, and the danger was obvious — when the risk of danger is obvious, the same objective standard for measuring whether a user of consumer goods has engaged in proper self-protective measures under N.J.S.A. 2A:58C-3a(2) should apply when a consumer product is involved in an intentional-wrong claim under 34:15-8. 172 N.J.L.J. 761 WORKERS’ COMPENSATION — Immunity — OSHA — Torts Mull v. Zeta Consumer Products et al , A-3 September Term 2002; Supreme Court; opinion by Verniero, J.; concurrences by Zazzali and Albin, JJ.; decided May 22, 2003. On certification to the Appellate Division. [Sat below: Judges Petrella and Alley in the Appellate Division; Judge Seybolt in the Law Division.] DDS No. 39-1-3770 Here, where plaintiff was injured when her hand was drawn into the winding machine she was operating, her allegations — that defendant-employer had disengaged the machine’s safety devices and knew of the machine’s dangerous condition because of previous accidents and employee complaints and OSHA’s prior citations for violations — if proved, satisfy both the conduct and context prongs of the Laidlow and Millison test for the intentional-wrong exception to the immunity from common-law suit provided by N.J.S.A. 34:15-8 of the Workers’ Compensation Act, thus entitling her tort case to proceed in the Law Division, and the Appellate Division erred in reversing the trial court’s refusal to grant defendant summary judgment; that there is no evidence that defendant deceived OSHA regarding the safety devices does not warrant a different result since, under Laidlow, it is the totality of the facts that is dispositive. 172 N.J.L.J. 765 Crippen v. Central Jersey Concrete Pipe Company et al, A-5 September Term 2002; Supreme Court; opinion by Coleman, J.; concurrences by Zazzali and Verniero, JJ.; decided May 22, 2003. On certification to the Appellate Division, 350 N.J. Super. 313 (App. Div. 2002). [Sat below: Judges Petrella and Baime in the Appellate Division; Judge Feldman in the Law Division.] DDS No. 39-1-3769 Applying the two-prong test of Millison and Laidlow, here, where 18 months before the workplace accident that resulted in the employee’s death the Occupational Safety and Health Administration had issued a Citation and Notification of Penalty to defendant-employer for numerous unsafe working conditions (including the failure to identify permit-required confined spaces, to develop and implement a written permit-space entry program, to implement a lockout/tag-out procedure and to train employees in the use of energy-control devices), and defendant failed to correct these violations but intentionally deceived OSHA into believing that it had, a jury could reasonably conclude that defendant had knowledge that its deliberate failure to cure the OSHA violations would result in a substantial certainty of injury or death to one of its employees, and the Legislature never intended that such conduct would be part of everyday industrial life or be immunized by the Workers’ Compensation Act; defendant’s conduct constitutes an “intentional wrong” under 34:15-8, the exclusive-remedy provision of the act, and the trial court erred in dismissing this intentional-tort claim brought by the administratrix of decedent’s estate. 172 N.J.L.J. 776 WORKERS’ COMPENSATION — Indemnification — Medical Providers — Settlements University of Massachusetts Memorial Medical Center, Inc. v. Christodoulou , A-1682-02T3, A-1686-02T3; Appellate Division; opinion by Coburn, J.A.D.; decided and approved for publication April 16, 2003. Before Judges Stern, Coburn and Collester. On appeal from the Law Division, Hudson County, L-1825-01. [Sat below: Judge Antonin.] DDS No. 39-2-3450 Here, where the compensation parties (the deceased’s father, his employer, and the employer’s insurer and its claims administrator) reached a settlement, under N.J.S.A. 34:15-20, of the petitioner’s claims that did not provide for payment of medical services, and plaintiff-medical providers had timely notice of that action, their common-law action against the petitioner is barred because of their failure to intervene or file their own claim in the Division of Workers’ Compensation action; further, the agreement in the settlement to hold petitioner harmless for the medical bills does not provide a basis for a claim by the medical providers against the decedent’s employer and its insurance representatives since the common-law action against petitioner is not viable; finally, although the indemnification agreement does not specifically refer to legal expenses, it is construed here to provide that petitioner is entitled to reimbursement from the decedent’s employer and its insurance representatives for his legal fees in defending this action. 172 N.J.L.J. 331 WORKERS’ COMPENSATION — Limitations of Actions — Post-Traumatic Stress Disorder Brunell v. Wildwood Crest Police Department etc. , A-126/127 September Term 2001; Supreme Court; opinion by Long, J.; decided May 21, 2003. On certification to the Appellate Division, 348 N.J. Super. 180 (App. Div. 2002). [Sat below: Judges King, Cuff and Wecker in the Appellate Division; Judge Dailey in the Division of Workers' Compensation.] DDS No. 39-1-3746 Post-traumatic stress disorder (PTSD) may be considered either an “accidental injury” or an “occupational disease” under the workers’ compensation statute depending on the circumstances, and when the facts of a case straddle both categories a worker is entitled to file both claims; in the narrow band of accident cases that result in latent or insidiously progressive injury, the accident statute of limitations does not begin to run until the worker knows or should know that he has sustained a compensable injury; the order of the Appellate Division, affirming the finding of the judge of compensation that dismissed petitioners’ claims for PTSD on the ground that the claims were not filed within two years of the “accident” giving rise to PTSD, is reversed. 172 N.J.L.J. 685

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