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STATE COURT CASES ATTORNEY/CLIENT — FRAUD 04-2-3246 Guerriero v. Passarella, Esq., et al., App. Div. (per curiam) (15 pp.) On defendant Deming’s appeal, the appellate panel is constrained to reverse the Law Division’s judgment which awarded compensatory and punitive damages to plaintiff, based on the trial court’s finding that Deming, an attorney, and co-defendant Passarella, also an attorney, who had settled with plaintiff prior to trial, had, in collusion, defrauded plaintiff in respect of rights he had as a mortgagee in the underlying real estate transaction. The evidence does not support a finding that plaintiff was the victim of defendant’s fraud or collusion with Passarella. While Passarella was guilty of malpractice in his representation of plaintiff, if defendant Deming was guilty of malpractice, it was not in respect of this plaintiff, to whom the panel is satisfied that he had no duty. CIVIL PROCEDURE — ATTORNEY’S FEES — FRIVOLOUS LITIGATION — ENTRY OF JUDGMENT 07-2-3247 Fletcher, et ux. v. Fallone, et al., App. Div. (per curiam) (4 pp.) Plaintiffs sued defendants, asserting that some or all of them had falsely accused the male plaintiff of vandalizing a house under construction; one defendant was voluntarily dismissed from the action and the remainder were dismissed by a directed verdict. Although defense counsel informed the judge that he would apply for counsel fees and costs under the Frivolous Litigation Act, he did not present a form of judgment for thirteen months, and then did not request the fees until over two months after that. The panel agrees with plaintiff that the fee request was grossly out of time, and should not have been granted by the trial judge. A request for fees should be brought immediately following the establishment of the movant as the prevailing party. Despite the fact that the fee request did timely follow the actual entry of the judgment submitted by defendants, defendants overlook the fact that the rules provide that the court clerk shall enter judgment on the docket without awaiting further order of the court. The separate document from counsel does not govern the date of the judgment. CIVIL PROCEDURE — REINSTATEMENT OF COMPLAINTS 07-2-3248 Orlandi v. Butrico, et al., App. Div. (per curiam) (4 pp.) The court below justly denied plaintiff’s request for reinstatement of his wrongful termination and discrimination complaint; even though plaintiff’s former attorney was the subject of disciplinary proceedings and never filed any opposition to defendants’ motion for summary judgment, the judge notified plaintiff in a letter that he would adjourn the motion and given plaintiff time to obtain new counsel and respond. Plaintiff’s certification contains only vague statements which fall well short of showing a serious effort to comply with the judge’s letter. CONSUMER FRAUD — POOLS 09-2-3249 Liebelt v. Dover Pools & Supplies, Inc., App. Div. (per curiam) (2 pp.) The trial court justifiably awarded plaintiff treble damages, concluding that defendant had violated the Consumer Fraud Act in connection with the sale to plaintiff of a kit for an above-ground pool, both in making false oral representations to plaintiff that she could cancel the contract at any time, and in failing to conspicuously post its refund policy relating to merchandise such as the pool kit, as required by law. CONTRACTS — REALTORS — FINDER’S FEE 11-2-3250 Brown v. Cecchini, etc., App. Div. (per curiam) (4 pp.) Assessing the credibility of both parties and finding the plaintiff realtor more credible than the defendant developer, the judge found that the parties had entered into an agreement for the payment of $10,000 to plaintiff as a finder’s fee for certain property which defendant developed; that the choices offered by defendant to plaintiff related only to the timing of the payment, not to whether defendant was obligated to pay the fee; and that plaintiff had performed under the agreement and was entitled to the full fee. ENVIRONMENT — WETLANDS 17-2-3251 Danlap Corp. v. State of N.J. D.E.P., App. Div. (per curiam) (21 pp.) The appellate court affirms the final decision of the Commissioner of the Department of Environmental Protection upholding the wetlands classification of appellant’s property in a letter of interpretation (LOI), and rejecting appellant’s contentions that: (1) summary decision was improper because of issues of material fact; (2) the DEP violated the time frame establishing that LOI classifications are valid for five years when it issued a two-tier LOI, which set the upgrade of the wetlands classification from intermediate to exceptional resource value during the five-year period; and (3) the Commissioner erred by refusing to estop the DEP from upgrading the wetlands classification after the LOI was issued, and by failing to find that the DEP had selectively enforced the regulations with regard to issuing transition area waivers. FAMILY LAW — ALIMONY — CHILD SUPPORT 20-2-3252 Wright v. Wright, App. Div. (per curiam) (10 pp.) Although affirming the judge’s reduction to judgment of $250,000 that was owed by defendant to plaintiff on monetary obligations that were not directly related to alimony or child support, the court reverses the remaining two determinations by successive motion judges that effectively resulted in a denial of defendant’s motion for a modification of his child support and alimony obligations, retroactive to 1989. Despite holding a Lepis hearing, the first motion judge failed to make the required findings of fact and conclusions of law; the appropriate considerations must be investigated on remand. Moreover, there is no legal support for the nature of relief afforded by the motion judge; the nature of the relief afforded was arbitrary and unrelated to the financial status of the parties or to plaintiff’s needs. FAMILY LAW — JEWISH “GET” 20-2-3253 Mayer-Kolker v. Kolker, App. Div. (Alley, J.A.D.) (9 pp.) In connection with the plaintiff-wife’s contention that the trial court which dissolved the parties’ marriage erred in failing to compel the defendant-husband to cooperate in her efforts to obtain a “get” from a Jewish religious tribunal, the appellate panel remands to the trial court: (a) for the development of a more complete record as to the parties’ obligations under Mosaic law in the circumstances of this case, including the details as to the agreement, or “ketubah,” allegedly entered into by the parties at the time of their marriage; and (b) for a determination as to whether, in light of such facts, the court has the authority to compel defendant to cooperate with plaintiff in obtaining a get. [Approved for publication Mar. 28, 2003.] INSURANCE — POLLUTION EXCLUSIONS 23-2-3254 Denson, et ux., et al. v. Pennsylvania Natl. Ins. Co., et al., App. Div. (per curiam) (13 pp.) The lower court granted summary judgment to the defendant insurer, dismissing plaintiffs’ claims for a defense and indemnification under policies which contained absolute pollution exclusion clauses. The panel is satisfied that the policies issued covered the gasoline spill that occurred in 1989, which resulted in groundwater contamination to off-site wells, prompting the DEP to issue directives against the plaintiffs. However, the panel agrees that there was no first-party coverage for any claim relating to property damage to underground tanks alleged to be defective or leaking because there was no evidence in support of such property damage. Therefore, the court reverses and remands for a determination of the damages incurred, but affirms on the first-party property damage claim. INSURANCE — VERBAL THRESHOLD — AICRA — PHYSICIAN’S CERTIFICATIONS — DISMISSALS 23-2-3255 Hart, Jr., et ux. v. Compaine, et ux., App. Div. (per curiam) (9 pp.) The court affirms the Law Division judgment reinstating a prior order dismissing plaintiffs’ complaint — for failure to submit a timely physician’s certification of permanency — but remands to amend the dismissal to be without prejudice; while the judges agree that, on this record, plaintiffs failed to demonstrate good cause to excuse their late filing of the physician’s certification, the motion judge did not have the benefit of Watts, Konopka, and Casinelli in dismissing plaintiffs’ complaint with prejudice. LABOR AND EMPLOYMENT — MISREPRESENTATIONS 25-2-3256 Holder v. United Way of Greater Mercer Cy., et al., App. Div. (per curiam) (4 pp.) Summary judgment was properly entered in favor of defendants, dismissing plaintiff’s complaint alleging that his employer’s president induced him to resign, misrepresenting the financial stability of the company and falsely indicating that there was a budgetary need to eliminate plaintiff’s position; even assuming that such a lie was communicated to plaintiff, plaintiff was an at will employee and did not show reasonable reliance on any such misrepresentation. MUNICIPAL LAW — SEWAGE TREATMENT FACILITIES — HOOKUPS 30-2-3257 Martin, etc. v. Twp. of Hampton, etc., et al., App. Div. (per curiam) (7 pp.) This dispute arises out of plaintiff’s challenge to the municipality’s grant to a third party, in closed session, of the right to hook up to certain sewage treatment facility to which plaintiff felt it also had a right to connect. The panel affirms the dismissal of plaintiff’s action in lieu of prerogative writs, concluding that the decision of the municipal committee was neither arbitrary or capricious; the decision merely approved the final step of a plan which allocated the available sewage treatment capacity to the only potential user, which, by that time, had already successfully undertaken all of the necessary prerequisites for allocation of the sewage capacity, including petitioning the DEP for amendments to the wastewater management plan and the inclusion of its property in the approved sewer district; securing approvals from the SCMUA; and securing the consent of the property owner where the sewer lines were located to tie its property into that existing system. Although plaintiff wrote an occasional letter about its needs and desired plans, it had done none of these things, and was not in a position to access or utilize the excess capacity. Further, there was no violation of the Open Public Meetings Act in the closed session in this case. MUNICIPAL LAW — SIGNS 30-2-3258 Borough of Ft. Lee, etc. v. Valley National Bank, etc.; one other cpation, App. Div. (per curiam) (15 pp.) The plaintiff municipality and building lessor appeal from an order granting summary judgment to the building lessee Valley National Bank on its claim of entitlement to retain its three-sided, virtually billboard-sized, illuminated sign located atop a building that the Bank vacated in 1998, but for an ATM machine located in the lobby. The sign, which contains a toll-free number, has economic significance to the Bank, since it can readily be viewed by motorists crossing the G.W. Bridge, and thus constitutes prime advertising. The appellate panel agrees with appellants, however, that the retention of the sign constitutes a violation of governing local ordinances, and reverses the order. PARENT/CHILD — TERMINATION OF RIGHTS 28-2-3259 N.J. D.Y.F.S. v. A.T.; I/M/O Guardianship of J.E.R., a Minor, App. Div. (per curiam) (16 pp.) The court aptly terminated the parental rights of appellant — mother of the three-year old boy in question — noting, inter alia, that she hid the pregnancy from her family, sought no prenatal care, and left the newborn infant on the street, wrapped in a tee-shirt, dirty and with dried afterbirth still on him, where he was found by two young men. Despite DYFS’s attempts to work with appellant after she was identified as the child’s mother, its records are replete with evidence of her unfitness as a parent to her other children still in her care, her incarceration for child endangerment, and her deportation. PARENT/CHILD — TERMINATION OF RIGHTS 28-2-3260 D.Y.F.S. v. S.G.; I/M/O Guardianship of K.G., et al., Minors, App. Div. (per curiam) (6 pp.) The court aptly terminated the parental rights of appellant — mother of the seven and twelve-year old children in question — and the panel rejects her contention that the Division improperly provided an “inverse service” by requiring her to enter an in-patient drug program which allegedly violated the time provisions of the Federal and State Adoption and Safe Family Acts, the intent of which is to avoid unnecessary and lengthy stays in the foster system and to promote family stability and permanence. PHYSICIAN/PATIENT 29-2-3261 Graifer, etc., et al. v. Beauchamp, M.D., et al., App. Div. (per curiam) (8 pp.) The panel affirms the trial judge’s grant of summary judgment to the defendant doctors and hospital, finding that the record supports his conclusions that the testimony of plaintiffs’ expert did not establish a prima facie case of deviations from the standard of care, and, even if it did, it did not establish a prima facie case that any such deviations were a proximate cause of the death, within twenty-four hours of the premature birth, of plaintiffs’ child. TORTS — CLAIMS ACT 36-2-3262 Beauchamp, et ux. v. Amedio, et al., App. Div. (per curiam) (7 pp.) The judge aptly dismissed plaintiffs’ automobile personal injury action, in its entirety, for their failure to satisfy the Tort Claims Act threshold, finding that plaintiffs failed to present sufficient evidence that the injuries sustained — painful residuals from soft tissue injuries to the neck and back — represented a substantial permanent loss of bodily function. CRIMINAL LAW AND PROCEDURE — APPEALS FROM MUNICIPAL COURT 14-2-3263 State v. Gamba, App. Div. (per curiam) (7 pp.) The lower court erred in denying defendant’s motion to file an appeal, nunc pro tunc, of his municipal court conviction for lewdness and causing a public annoyance — in exposing his insufficiently-clad derriere to public view while working in his driveway; the right of appeal was appropriately communicated, however defendant was as effectively deprived of that right by the inaction of his subsequently-suspended attorney as he would have been if he had never known of its existence. The judge erred in concluding that he had no flexibility in applying the twenty-day time limit for appeal of this municipal matter. CRIMINAL LAW AND PROCEDURE — RESISTING ARREST AND TERRORISTIC THREATS 14-2-3264 State v. Pumphrey, App. Div. (per curiam) (11 pp.) The court reverses defendant’s conviction for fourth-degree resisting arrest by using or threatening the use of physical force or violence and third-degree terroristic threats, since the judge did not correctly instruct the jury on the necessary elements of these offenses. CRIMINAL LAW AND PROCEDURE — VIENNA CONVENTION 14-2-3265 State v. Jang, App. Div. (Carchman, J.A.D.) (16 pp.) Absent a showing of prejudice, the failure of a police officer 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 of a foreign national and illegal alien. As in State v. Cevallos-Bermeo, the panel declines to determine whether the VCCR confers individual rights on a defendant and whether there is an enforceable judicial remedy for violation of such rights. Unlike Cevallos-Bermeo, the panel notes that, in this case, the police did notify the consulate after defendant’s arrest. [Approved for publication Mar. 28, 2003.] ****** Correction: In yesterday’s Alert, 11-2-3223, Mercer v. Corporate Property Investors, etc., et al., was erroneously listed as having 14 pages; the case has only 4 pages. —END—

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