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ADMINISTRATIVE LAW � Developmental Disabilities T.H. v. Division of Developmental Disabilities , A-6109-03T5; Appellate Division; opinion by Wecker, J.A.D.; decided and approved for publication November 29, 2005. Before Judges Stern, Coburn and Wecker. On appeal from Department of Human Services, Division of Developmental Disabilities, HDD-6088-02. DDS No. 22-2-2184 The regulation requiring the functional limitations that define a developmental disability (not merely the diagnosis) to have been manifest before age 22 is not inconsistent with N.J.S.A. 30:6D-3a; since there is sufficient credible evidence supporting the administrative law judge’s initial decision, adopted by the Director of the Division of Developmental Disabilities, that appellant failed to demonstrate that the requisite functional limitations were manifest before 22, the denial of services is affirmed. 182 N.J.L.J. 946 ADULT DIAGNOSTIC AND TREATMENT CENTER (see CRIMINAL PRACTICE) ADVANCED DIRECTIVES FOR HEALTH CARE ACT (see HEALTH LAW) ALIMONY (see FAMILY LAW) ALTERNATIVE PROCEDURE FOR DISPUTE RESOLUTION ACT (see INSURANCE) APPEALS (see CRIMINAL PRACTICE, HEALTH LAW) APPORTIONMENT OF FAULT (see PRODUCTS LIABILITY) ARBITRATION (see CIVIL PRACTICE) ASSAULT AND BATTERY (see TORTS) ASSESSMENTS (see LEGAL PROFESSION) ASSET ALLOCATION (see SCHOOLS and EDUCATION) ATTENUATION EXCEPTION (see CRIMINAL PRACTICE) ATTORNEY DISCIPLINE (see LEGAL PROFESSION) ATTORNEY’S LIEN ACT (see LEGAL PROFESSION) ATTORNEYS’ FEES (see also CONSUMER PROTECTION, GOVERNMENT, INSURANCE) ATTORNEYS’ FEES � Competency Hearings In the Matter of Landry , No. 101584; Chancery Division, Probate Part, Atlantic County; opinion by Todd, P.J.Ch.; decided August 10, 2005; approved for publication November 7, 2005. DDS No. 38-4-2080 The court has the authority to award attorneys’ fees to a plaintiff who brought an action under Rule 4:86 for the appointment of a guardian for an individual who is alleged to be mentally incapacitated; since the attorneys’ fees requested were generally reasonable and appropriate, the services rendered played a role in preserving the estate, plaintiff’s primary motivation was to protect the incompetent and her estate, and there are funds in the estate from which the payment can be made, fees are awarded. 182 N.J.L.J. 817 ATTORNEYS’ FEES � Disciplinary Hearings � Public Employees In the Matter of Malone , A-2384-03T5; Appellate Division; opinion by Wefing, P.J.A.D.; decided and approved for publication November 23, 2005. Before Judges Wefing, Fuentes and Graves. On appeal from a final administrative action of the Merit System Board. DDS No. 33-2-2160 The standard of review for an administrative award of attorneys’ fees is de novo; applying that standard, appellant, who prevailed in a disciplinary action against her before the Merit System Board, is entitled to reimbursement for attorneys’ fees under N.J.A.C. 4A:2-2.12(d) and (e) � at a rate in excess of that specified in (c) � since the retainer agreement she signed, the difficulty of the matter, the skill needed, and her attorney’s experience, reputation and ability justify the higher rate. 182 N.J.L.J. 942 AUTOMATIC DOORS (see TORTS) AUTOMOBILE INSURANCE COST REDUCTION ACT (see INSURANCE) AUTOMOBILES (see DAMAGES) BREATHALYZER-INSPECTION CERTIFICATES (see CRIMINAL PRACTICE) BREATHALYZER REFUSALS (see CRIMINAL PRACTICE) BURDENS (see EMPLOYMENT) CDS (see CRIMINAL PRACTICE) CHILD ENDANGERMENT (see CRIMINAL PRACTICE) CHIROPRACTORS (see INSURANCE) CIVIL COMMITMENTS (see HEALTH LAW) CIVIL PRACTICE � Arbitration Nascimento et al v. King , A-2472-04T1; Appellate Division; opinion by Reisner, J.A.D.; decided and approved for publication December 15, 2005. Before Judges Coburn, Lisa and S.L. Reisner. On appeal from the Law Division, Essex County, L-8410-02. [Sat below: Judge Simonelli.] DDS No. 03-2-2341 Where, after nonbinding arbitration, defense counsel made a good-faith attempt to serve the demand for a trial de novo within the 30-day time limit, but plaintiff’s counsel received a deposition notice instead of the demand, he should have been placed on notice at that time that the demand had been filed, which he later received only a few days after the time period expired; defendant substantially complied with the 30-day requirement, and the confirmation of the arbitration award is reversed. 182 N.J.L.J. 1200 CIVIL PRACTICE � Settlements Jennings v. Reed et al, A-2043-04T1; Appellate Division; opinion by Parrillo, J.A.D.; decided and approved for publication November 10, 2005. Before Judges Lintner, Parrillo and Gilroy. On appeal from the Law Division, Hunterdon County, L-255-01. [Sat below: Judge Buchsbaum.] DDS No. 07-2-2033 In this motion to enforce a settlement, where plaintiffs’ claim that the husband lacked the mental capacity to consent to the settlement and acted under duress because he suffered from anxiety that his attorney would otherwise withdraw, but they did not establish that his free will was subverted or that he did not understand what he was doing, their claim was properly rejected; the claim that he and their counsel lacked authority to consent to the settlement on behalf of the wife is also rejected. 182 N.J.L.J. 788 COASTAL AREA FACILITY REVIEW ACT (see LAND USE and PLANNING) COMPARATIVE ANALYSIS (see INSURANCE) COMPETENCY HEARINGS (see ATTORNEYS’ FEES) CONDEMNATION (see REAL PROPERTY) CONDOMINIUM ASSOCIATIONS (see REAL PROPERTY, TORTS) CONDOMINIUMS (see REAL PROPERTY) CONFIDENTIAL VICTIM STATEMENTS (see FAMILY LAW) CONFIDENTIALITY (see JUDGES, LEGAL PROFESSION) CONSCIENTIOUS EMPLOYEE PROTECTION ACT (see EMPLOYMENT, INSURANCE) CONSPIRACY (see CRIMINAL PRACTICE) CONSTITUTIONAL LAW (see LEGAL PROFESSION) CONSTITUTIONAL RIGHTS (see SCHOOLS and EDUCATION) CONSUMER FRAUD ACT (see CONSUMER PROTECTION) CONSUMER PROTECTION � Attorneys’ Fees � Consumer Fraud Act � Landscape Irrigation Contractors � Refunds Artistic Lawn & Landscape Co. Inc. v. Smith , DC-1234-05; Law Division, Special Civil Part, Burlington County; opinion by Hogan, J.S.C.; decided May 19, 2005; approved for publication September 22, 2005. DDS No. 09-3-1637 The failure of plaintiff, a landscape irrigation contractor, to obtain a certificate under N.J.S.A. 45:5AA-3 before contracting with defendant-homeowner is an unlawful and unconscionable business practice under the CFA, and in light of this failure and plaintiff’s regulatory violations, the contract is not enforceable; defendant is entitled under the CFA to a refund of his deposit money, which may not be trebled, and to attorneys’ fees and costs but absent proof of ascertainable loss, not to treble damages. 182 N.J.L.J. 132 CONTRACTS � Contribution � Guaranties Republic Business Credit Corp. v. Camhe-Marcille et al , A-0964-04T2; Appellate Division; opinion by Coburn, P.J.A.D.; decided and approved for publication December 13, 2005. Before Judges Coburn, Collester and Lisa. On appeal from the Chancery Division, Bergen County, C-73-00. [Sat below: Judge Escala.] DDS No. 23-2-2321 Where the estate of one of the three guarantors on the loan sought contribution from the other guarantors, the trial court erred in ordering the other guarantors to each pay one-third of the amount the estate paid the creditor, rather than ordering them each to pay one-half of the amount paid in excess of the estate’s obligation, and the matter is reversed and remanded. 182 N.J.L.J. 1202 CONTRIBUTION (see CONTRACTS) CRIMINAL PRACTICE � Adult Diagnostic and Treatment Center � Sentencing � Sexual Assault State v. N.G., A-2011-04T5; Appellate Division; opinion by Winkelstein, J.A.D.; decided and approved for publication November 28, 2005. Before Judges Conley, Weissbard and Winkelstein. On appeal from the Law Division, Union County, 03-05-0434-I. [Sat below: Judge Heimlich.] DDS No. 14-2-2179 The terms “repetitive” and “compulsive,” as used in N.J.S.A. 2C:47-1 to -10, are well-understood by persons of ordinary intelligence and provide fair notice as to when a defendant may be sentenced to the Adult Diagnostic and Treatment Center and, therefore, the statute is not unconstitutionally vague; to decide whether the behavior is repetitive and compulsive so as to warrant ADTC treatment, the offender’s condition must be considered at sentencing, not merely on the dates the criminal acts occurred. 182 N.J.L.J. 944 CRIMINAL PRACTICE � Appeals � Extended Terms � Plea Agreements � Sentencing State v. Owens , A-4694-03T4; Appellate Division; opinion by Grall, J.A.D.; decided and approved for publication December 8, 2005. Before Judges Stern, Fall and Grall. On appeal from the Law Division, Mercer County, Indictment Nos. 02-08-1100; 01-12-1716. [Sat below: Judge Blackburn.] DDS No. 14-2-2292 N.J.S.A. 2C:43-6f cannot be construed to apply to convictions entered in one proceeding; where defendant pleaded guilty to charges included in two indictments in the same proceeding and pursuant to one plea agreement, he had not been “previously convicted” of a predicate offense and the extended term imposed on him pursuant to N.J.S.A. 2C:43-6f on the second conviction is illegal; defendant’s arguments regarding trial error and error in the indictment will not be considered in light of his guilty pleas. 182 N.J.L.J. 1115 CRIMINAL PRACTICE � Attenuation Exception � CDS � Post-Conviction Relief � Search and Seizure State v. Lee, A-5492-03T5; Appellate Division; opinion by Kestin, P.J.A.D.; dissent by Fuentes, J.A.D.; decided and approved for publication December 2, 2005. On appeal from the Law Division, Criminal Part, Passaic County, 05-09-0945. [Sat below: Judges Barisonek and Marmo.] DDS No. 14-2-2232 Defendant, convicted of several drug offenses, assault, escape, and resisting arrest, was not entitled to discovery to support the claim in his petition for post-conviction relief that he had been the victim of racial profiling in the motor vehicle stop that led to the discovery of the CDS by reason of the attenuation exception to the exclusionary rule, which applied because of his conduct after the stop; the denial of his motion for discovery is affirmed, as is the resultant denial of the PCR petition. 182 N.J.L.J. 1049 CRIMINAL PRACTICE � Breathalyzer-Inspection Certificates � Drunk Driving � Evidence State v. Godshalk, Appeal No. 10-2005; Law Division, Criminal Part, Camden County; opinion by Cook, J.S.C.; decided May 26, 2005; approved for publication October 11, 2005. DDS No. 14-3-1787 While the Crawford ban against testimonial out-of-court hearsay statements by an unavailable witness may apply in DWI cases, the Supreme Court specifically excluded business records from the scope of that ban; since the proffered Breathalyzer-inspection certificates are business records of the New Jersey State Police, Crawford does not apply to them and defendant’s argument for their exclusion where the trooper who conducted the inspections was not produced at trial is without merit. 182 N.J.L.J. 352 CRIMINAL PRACTICE � Breathalyzer Refusals � DWI � Evidence � Search and Seizure State v. Badessa , A-94 September Term 2004; Supreme Court; opinion by Albin, J.; decided November 10, 2005. On certification to the Appellate Division, 373 N.J. Super. 84 (App. Div. 2004). [Sat below: Judges Petrella, Lintner and Parker in the Appellate Division; Judge Neustadter in the Law Division.] DDS No. 14-1-2042 Where defendant was unlawfully stopped after making an otherwise proper turn to evade a sobriety checkpoint, the officer’s observations of defendant were the fruit of the unconstitutional search and defendant’s motion for suppression in his trial for refusing to take a breathalyzer test should have been granted; since those observations were necessary to prove an essential element of the offense, defendant’s conviction is reversed. 182 N.J.L.J. 785 CRIMINAL PRACTICE � CDS State v. Lewis , A-84 September Term 2004; Supreme Court; opinion by Wallace, J.; dissent by LaVecchia, J.; decided December 8, 2005. On certification to the Appellate Division. DDS No. 14-1-2291 A defendant who constructively possesses a controlled dangerous substance may be convicted under N.J.S.A. 2C:35-7.1 for possessing with intent to distribute CDS within 500 feet of a public park, even though the CDS are beyond the 500-foot limit; here, the evidence that the nearby stash contained both marijuana and cocaine supported the reasonable inference that, depending on the drug requested by the buyer, defendant intended to distribute both drugs within the park zone. 182 N.J.L.J. 1113 CRIMINAL PRACTICE � CDS � Experts State v. Boston, A-5746-03T4; Appellate Division; opinion by Kestin, P.J.A.D.; decided and approved for publication October 6, 2005. Before Judges Kestin, Lefelt and R.B. Coleman. On appeal from the Law Division, Criminal Part, Essex County, 03-06-2107. [Sat below: Judge Ravin.] DDS No. 14-2-1691 Where defendant was convicted of, inter alia, possession of CDS and possession with intent to distribute, but no drugs were found on or near her at the time of arrest, the testimony of the State’s expert on drug trafficking, that defendant had distributed drugs, invaded the province of the jury and the convictions are vacated and the matter remanded; the State may not bolster the testimony of the officer who conducted the surveillance with an expert opinion on the ultimate issue to be resolved by the jury. 182 N.J.L.J. 185 CRIMINAL PRACTICE � Child Endangerment � Juries � Prosecutors State v. Black, A-4069-02T2; Appellate Division; opinion by Cuff, P.J.A.D.; decided and approved for publication October 5, 2005. Before Judges Cuff, Lintner and Gilroy. On appeal from the Law Division, Ocean County, Indictment No. 01-02-0292. [Sat below: Judge Turnbach.] DDS No. 14-2-1677 The conviction of endangering the welfare of a child is reversed since it was obtained when the judge reassembled the jury the day after it had rendered a verdict on the murder charge, had been discharged, and had dispersed; the aggravated manslaughter conviction is reversed and is remanded for a new trial due to statements in the prosecutor’s summation that could have compromised defendant’s right to remain silent, could have shifted the burden of proof, and that appealed to emotion rather than reason. 182 N.J.L.J. 131 CRIMINAL PRACTICE � Conspiracy � Department of Motor Vehicles � Official Misconduct State v. Perez , A-86 September Term 2004; Supreme Court; per curiam opinion; decided October 13, 2005. On certification to the Appellate Division. DDS No. 14-1-1751 Although the DMV is a private agency and clerks are not employed by the state, the head clerk met the definition of a “public servant” under N.J.S.A. 2C:27-1g and, therefore, defendant was properly charged and convicted of conspiracy to commit official misconduct with the clerk by issuing false documents; the Legislature was clearly endeavoring to include within the term “public servant” those individuals who, through a contractual delegation of responsibility, are empowered to exercise public authority. 182 N.J.L.J. 332 CRIMINAL PRACTICE � Criminal Sexual Contact � Juveniles State of New Jersey in the Interest of D.W. , A-1980-04T4; Appellate Division; per curiam opinion; decided October 6, 2005; approved for publication November 15, 2005. Before Judges A.A. Rodriguez and C.S. Fisher. On appeal from the Chancery Division, Family Part, Camden County, FJ-04-315-05. DDS No. 14-2-1693 While the evidence supported the trial judge’s finding that D.W. had touched a classmate’s buttocks, causing her embarrassment, it did not support a finding that he did so to humiliate or degrade her, in violation of N.J.S.A. 2C:14-3(b); the conduct was nothing more than inappropriate horseplay between schoolmates and did not rise to a level of seriousness commensurate with a charge of criminal sexual contact, and the adjudication of delinquency is reversed insofar as it was based on criminal sexual contact. 182 N.J.L.J. 1115 CRIMINAL PRACTICE � Discovery � Photographs � Sexual Assault � Victims’ Rights State v. Gilchrist, A-4561-04T5; Appellate Division; opinion by Graves, J.A.D.; decided and approved for publication November 3, 2005. Before Judges Wefing, Wecker and Graves. On appeal from the Law Division, Criminal Part, Hudson County, Ind. No. 1116-07-2004. [Sat below: Judge Mark J. Nelson.] DDS No. 14-2-1968 Defendant has failed to articulate any legitimate basis for obtaining a pretrial photograph of the victim, whom he allegedly sexually assaulted and threatened to kill, and neither the Sixth nor Fourteenth Amendments require the State to furnish it; any possible benefits to defendant are entirely speculative and are outweighed by other concerns, including the victim’s right to privacy, and the need to encourage crime victims to cooperate; the decision of the trial court is reversed. 182 N.J.L.J. 601 CRIMINAL PRACTICE � Megan’s Law � Sex Offender Registration State v. Leahy, A-5294-03T4; Appellate Division; opinion by Collester, J.A.D.; decided and approved for publication October 28, 2005. Before Judges Coburn, Collester and Lisa. On appeal from the Law Division, Somerset County, 03-02-0103-I. [Sat below: Judge Edward M. Coleman.] DDS No. 14-2-1907 The trial judge correctly charged the jury that under Megan’s Law if a convicted sex offender fails to notify either the law enforcement agency in the town where he has been living of a change of address, or the agency in the town to which he will move, he has violated the law � the State need not prove that he failed to notify both agencies; where the State presented evidence only that defendant failed to notify the agency in the town he was leaving, his conviction for failing to notify is affirmed. 182 N.J.L.J. 603 CRIMINAL PRACTICE � Polygraph Examinations � Prison Disciplinary Hearings Ramirez v. Department of Corrections , A-2775-04T2; Appellate Division; opinion by Holston, J.A.D.; decided and approved for publication December 19, 2005. Before Judges Cuff, Parrillo and Holston. On appeal from a final agency decision of the Department of Corrections. DDS No. 13-2-2367 An inmate’s right to a polygraph is conditional, and his request should be granted when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process; since the absence of a polygraph did not impede the fundamental fairness of appellant’s disciplinary hearing, the DOC’s decision upholding the hearing officer’s determination finding him guilty of attempting to assault a corrections officer is affirmed. 182 N.J.L.J. 1214 CRIMINAL PRACTICE � Post-Conviction Relief � Racial Profiling State v. Ball , A-4088-03T4; Appellate Division; opinion by Parker, J.A.D.; decided and approved for publication December 9, 2005. Before Judges Stern, Fall and Parker. On appeal from the Law Division, Union County, Indictment No. 94-09-1009. [Sat below: Judge Barisonek.] DDS No. 14-2-2306 Where the state has conceded that the stop was based on racial profiling, defendant is entitled to discovery on that issue, and the denial of defendant’s petition for post-conviction relief is reversed; a defendant is entitled to racial profiling discovery on establishing a colorable claim, and only after the discovery has been made available to defendant is it appropriate to decide whether there was an illegal stop which was attenuated by defendant’s post-stop conduct. 182 N.J.L.J. 1115 CRIMINAL PRACTICE � Prisons � Search and Seizure State v. Daniels , A-7023-03T4; Appellate Division; opinion by Axelrad, J.T.C. (temporarily assigned); decided and approved for publication December 16, 2005. Before Judges Skillman, Axelrad and Payne. On appeal from the Law Division, Burlington County, 02-04-0472. [Sat below: Judge Almeida.] DDS No. 14-2-2365 There is no reason to exclude a visitor’s vehicle from the property subject to search under the DOC protocol since such a vehicle can be used to transport contraband onto prison property, where it can be retrieved by inmates � the State’s legitimate interest in keeping contraband out of penal institutions outweighs the limited intrusion on the personal privacy interest of prison visitors; the denial of defendant’s motion to suppress the heroin found in her car in the prison parking lot is affirmed. 182 N.J.L.J. 1202 CRIMINAL PRACTICE � Probable Cause Hearings � Right to Counsel State v. Dennis, A-78 September Term 2004; Supreme Court; per curiam opinion; decided October 27, 2005. On certification to the Appellate Division. DDS No. 14-1-1885 Although defendant should have been represented by counsel at the probable cause hearing, the error was harmless; it is unlikely that defense counsel, if present at the hearing, would have been able to persuade the judge not to bind defendant over to the grand jury, and the judgment of the Appellate Division is affirmed. 182 N.J.L.J. 427 CRIMINAL PRACTICE � Racial Profiling State v. Gonzalez, etc. , A-0371-03T4 and A-5368-02T4; Appellate Division; opinion by Wecker, J.A.D.; concurrence by Stern, P.J.A.D.; decided and approved for publication December 20, 2005. Before Judges Stern, Wecker and Graves. On appeal from the Law Division, Warren County, I-93-03-0064. [Sat below: Judge Barisonek on the discovery issue; Judge Pursel on the remaining issues.] DDS No. 14-2-2385 Where defendants allege that they were victims of racial profiling in 1992, before State v. Soto and the creation of the Interim Report, and their conviction included charges based on their attack on the officer after they were stopped, they are entitled to discovery of the trooper’s history and any other relevant information; if there is support for defendants’ suspicions about the stop, then it can be decided if the stop is sufficiently attenuated to uphold admission of the challenged evidence. 182 N.J.L.J. 1216 CRIMINAL PRACTICE � Search and Seizure State v. Williams, A-0596-03T4; Appellate Division; opinion by Fisher, J.A.D.; decided and approved for publication December 13, 2005. Before Judges A.A. Rodriguez, Alley and C.S. Fisher. On appeal from the Law Division, Criminal Part, Union County, Indictment Nos. 02-05-0710 and 02-05-0711. [Sat below: Judge Coleman.] DDS No. 14-2-2330 The police lacked a reasonable and articulable suspicion when they attempted to frisk defendant upon an anonymous tip that “a black male wearing a black jacket” was selling drugs in a high-crime area where there was no corroboration of its accuracy regarding his involvement in criminal activity; the search following his flight cannot be legitimized as incidental to his arrest for obstruction because a citizen’s nonviolent flight from an unreasonable search and seizure cannot be validly criminalized. 182 N.J.L.J. 1214 CRIMINAL SEXUAL CONTACT (see CRIMINAL PRACTICE) DAMAGES (see also PRODUCTS LIABILITY) DAMAGES � Automobiles Premier XXI Claims Management v. Rigstad , A-4249-04T5; Appellate Division; opinion by Coburn, P.J.A.D.; decided and approved for publication November 15, 2005. Before Judges Coburn, Collester and Lisa. On appeal from the Law Division, Special Civil Part, Camden County, DC-11592-04. [Sat below: Judge Laskin.] DDS No. 05-2-2067 Plaintiff is entitled to prove his full damages by proving the cost of repair and the depreciated value after repair, or as was done here, by showing the value of the vehicle immediately before and after the accident; if defendant believed that repairing the car would restore it to its pre-accident value, it was obliged to prove that point; Associated Metals and the Civil Charge 6.17 are inconsistent with the case law. 182 N.J.L.J. 789 DEFAMATION (see TORTS) DEFENSE AND INDEMNIFICATION (see INSURANCE) DEFENSE COSTS (see INSURANCE) DEPARTMENT OF MOTOR VEHICLES (see CRIMINAL PRACTICE) DESIGN DEFECTS (see PRODUCTS LIABILITY) DEVELOPMENTAL DISABILITIES (see ADMINISTRATIVE LAW) DIFFERENTIAL DIAGNOSIS (see EVIDENCE) DISABILITIES (see REAL PROPERTY) DISCIPLINARY ACTION (see GOVERNMENT) DISCIPLINARY HEARINGS (see ATTORNEYS’ FEES) DISCIPLINARY PROCEEDINGS (see GOVERNMENT) DISCIPLINE (see JUDGES) DISCOVERY (see CRIMINAL PRACTICE) DISCRIMINATION (see EMPLOYMENT) DISENFRANCHISEMENT (see ELECTION LAW) DISSOLUTION OF REGIONAL DISTRICTS (see SCHOOLS and EDUCATION) DOMESTIC VIOLENCE (see FAMILY LAW) DOWNZONING (see LAND USE and PLANNING) DRUNK DRIVING (see CRIMINAL PRACTICE) DWI (see CRIMINAL PRACTICE) EASEMENTS (see REAL PROPERTY) ELECTION LAW � Disenfranchisement � Parolees and Probationers New Jersey State Conference-NAACP v. Harvey , A-6881-03T5; Appellate Division; opinion by Coburn, P.J.A.D.; decided and approved for publication November 2, 2005. Before Judges Coburn, Collester and Lisa. On appeal from the Chancery Division, Union County, UNN-C-4-04. [Sat below: Judge Span.] DDS No. 10-2-1940 The statute that disenfranchises those on parole or probation for an indictable offense is specifically authorized by the State Constitution and is not violative of it; further, where a statute is facially neutral, and there is no allegation of invidious purpose (plaintiffs argue only that the statute inadvertently has a disparate impact on African-Americans and Hispanics), disparate impact is an insufficient basis for relief under the State’s equal protection doctrine. 182 N.J.L.J. 617 ELECTRO-CONVULSIVE THERAPY (see HEALTH LAW) ELIGIBILITY (see UNEMPLOYMENT COMPENSATION) EMINENT DOMAIN (see LAND USE and PLANNING, REAL PROPERTY) EMPLOYERS’ LIABILITY (see INSURANCE) EMPLOYMENT � Burdens � Discrimination � Summary Judgment DeWees v. Pernot , A-3034-02T3; Appellate Division; opinion by Fuentes, J.A.D.; decided July 15, 2005; approved for publication October 12, 2005. Before Judges Kestin, Alley and Fuentes. On appeal from the Law Division, Mercer County, L-175-00. [Sat below: Judge Smithson.] DDS No. 25-2-0992 In determining on the motion for summary judgment whether plaintiff, after making out a prima facie case, produced sufficient evidence to rebut the employer’s alleged legitimate reason for its adverse action, the motion judge incorrectly focused on whether each incident alone could be the basis for an inference of discrimination, and did not consider that a jury may infer discrimination based on plaintiff’s prima facie case and rejection of defendants’ reasons. 182 N.J.L.J. 334 EMPLOYMENT � Conscientious Employee Protection Act � Whistleblowers Zubrycky v. ASA Apple, Inc., et al , A-0416-04T3; Appellate Division; opinion by Reisner, J.A.D.; decided and approved for publication November 4, 2005. Before Judges Collester, Lisa and S.L. Reisner. On appeal from the Law Division, Ocean County, L-867-04. [Sat below: Judge O'Brien.] DDS No. 25-2-1979 Plaintiff’s claim that he resigned because he was being underpaid in violation of the Wage and Hour laws does not state a claim for constructive discharge under CEPA, and the dismissal of his claim is affirmed; since CEPA does not apply to post-employment conduct, there is no merit to plaintiff’s claim that defendant violated CEPA by opposing his unemployment claim. 182 N.J.L.J. 683 EQUITABLE DISTRIBUTION (see FAMILY LAW) EVIDENCE (see also CRIMINAL PRACTICE, LEGAL PROFESSION) EVIDENCE � Differential Diagnosis � Expert Testimony � Physicians Creanga v. Jardal et al , A-100 September Term 2004; Supreme Court; opinion by Zazzali, J.; decided December 8, 2005. On certification to the Appellate Division. [Sat below: Judges Braithwaite and Winkelstein in the Appellate Division; Judge Fratto in the Law Division.] DDS No. 19-1-2281 Where plaintiff claimed that an automobile accident was the proximate cause of her premature labor and the resultant death of one of her twins, her treating physician’s opinion that the accident was the proximate cause of the miscarriage, after he eliminated other alternatives, was admissible and was not a net opinion; an expert opinion derived from a differential diagnosis is admissible when, as here, properly conducted. 182 N.J.L.J. 1111 EXEMPTIONS (see TAXATION) EXPERT TESTIMONY (see EVIDENCE) EXPERTS (see CRIMINAL PRACTICE) EXTENDED TERMS (see CRIMINAL PRACTICE) FAIR HOUSING (see REAL PROPERTY) FAMILY LAW � Alimony � Equitable Distribution Robertson v. Robertson , A-2282-03T2; Appellate Division; opinion by Payne, J.A.D.; decided and approved for publication November 9, 2005. Before Judges Skillman, Payne and Francis. On appeal from the Chancery Division, Family Part, Warren County, FM-21-117-02. [Sat below: Judge O'Connor.] DDS No. 20-2-2021 The stock options given to the husband three days before he filed for divorce were solely an inducement to join his new company, were not given in recognition of his past performance, and were not subject to equitable distribution; where the wife was a full-time homemaker and her educational level was lower than her husband’s, the award of permanent alimony to her is affirmed; when the marital home is sold the husband is entitled to a credit of one-half the amount he spent paying off a home equity loan. 182 N.J.L.J. 706 FAMILY LAW � Confidential Victim Statements � Domestic Violence � Harassment Pazienza v. Camarata , A-2873-04T5; Appellate Division; opinion by Lisa, J.A.D.; decided and approved for publication November 7, 2005. Before Judges Coburn, Lisa and Reisner. On appeal from the Chancery Division, Family Part, Burlington County, FV-03-940-05. DDS No. 20-2-1998 The trial judge correctly considered the parties’ history in finding that defendant’s continuous e-mails and text message constituted harassment and justified a final restraining order; a defendant should be given access to the information on pages 2 and 3 of the Confidential Victim’s Information Sheet � this issue is referred to the Supreme Court Committee for Family Practice and the Domestic Violence Working Group for consideration � but the failure to provide that information here was harmless error. 182 N.J.L.J. 681 FAMILY LAW � Grandparent Visitation Daniels v. Daniels , A-7123-03T1; Appellate Division; opinion by Reisner, J.A.D.; decided and approved for publication November 16, 2005. Before Judges Coburn, Lisa and S.L. Reisner. On appeal from the Chancery Division, Family Part, Morris County, FD-14-414-04. [Sat below: Judge Dangler.] DDS No. 20-2-2088 Since plaintiff-grandmother neither pleaded nor presented evidence that the cessation of visitation with her grandchildren would cause particular harm to the children, neither her complaint nor her proofs raised claims constitutionally cognizable under the Grandparent Visitation Statute, as construed in Moriarity; summary judgment dismissing her complaint was properly granted; the trial court’s holding that the GVS cannot constitutionally be applied to an intact family is rejected. 182 N.J.L.J. 862 FARMLAND PRESERVATION (see LAND USE and PLANNING) FEE DISPUTES (see LEGAL PROFESSION) FEES (see REAL PROPERTY) GOVERNMENT � Attorneys’ Fees � Municipalities � Police Officers Aperuta v. Pirrello et al , A-1751-04T2; Appellate Division; opinion by Winkelstein, J.A.D.; concurrence by Weissbard, J.A.D.; decided and approved for publication December 5, 2005. Before Judges Weissbard, Winkelstein and Francis. On appeal from the Law Division, Morris County, MRS-L-1106-02. [Sat below: Judge Deanne M. Wilson.] DDS No. 30-2-2241 To determine if a police officer is entitled to a defense at the municipality’s expense under N.J.S.A. 40A:14-155, it must be determined if the legal action was based on an affirmative act by the officer and if he acted with an ulterior illegal goal that would have perverted his job; under that test, the municipality must provide the officer with a means for his defense; the same result is reached applying the alternative test of whether the officer was acting within the scope of his employment. 182 N.J.L.J. 1051 GOVERNMENT � Disciplinary Action � Police � Public Employees Aristizibal et al v. City of Atlantic City, ATL-L-289-05; Law Division, Atlantic County; opinion by Armstrong, A.J.S.C.; decided March 17, 2005; approved for publication September 22, 2005. DDS No. 33-3-1643 Where policemen failed to report for duty two days in a row, the fact that the disciplinary notices may have been precipitously filed by the city’s business administrator on the next day, without statutory authorization, did not excuse the need to conduct a prompt investigation, and because the true commencement of an investigation did not take place within 45 days after the events, the city is permanently enjoined from proceeding with the disciplinary charges subsequently filed by the chief of police. 182 N.J.L.J. 134 GOVERNMENT � Disciplinary Proceedings � Public Employees � State Police DeBenedictis v. State of New Jersey , A-311-04T2; Appellate Division; opinion by Lefelt, J.A.D.; decided and approved for publication November 14, 2005. Before Judges Kestin, Lefelt and Seltzer. On appeal from a final decision of the State of New Jersey, Department of Law and Public Safety. DDS No. 33-2-2061 Where the State Police served a reprimand notice on the trooper, informing him of the charges and the basis for the disciplinary action taken against him, as well as certain rights of appeal, the notice was tantamount to a disciplinary complaint under N.J.S.A. 53:1-33 and was sufficient for applying the appropriate time period in which a complaint must be filed; also, by following the grievance procedure under collective bargaining, the trooper waived his right to a hearing under the statute. 182 N.J.L.J. 808 GOVERNMENT � Government Contracts � Minimum Wages Visiting Homemaker Service of Hudson County v. Board of Chosen Freeholders of the County of Hudson et al, A-3180-03T5; Appellate Division; opinion by Lintner, J.A.D.; decided and approved for publication October 7, 2005. Before Judges Cuff, Lintner and Gilroy. On appeal from the Law Division, Hudson County, L-1332-03. [Sat below: Judge Gallipoli.] DDS No. 25-2-1703 The county’s ordinance requiring contractors that provide food, janitorial, unarmed security guard, and home health-care services to the county must also provide an increased minimum wage and mandatory health benefits to their employees did not violate plaintiff’s equal protection rights since it addresses the stability and needs of certain contracting industries. 182 N.J.L.J. 195 GOVERNMENT � Handgun Permits � Retired Police Officers In the Matter of Broking , A-3882-04T3; Appellate Division; opinion by Yannotti, J.A.D.; decided and approved for publication November 14, 2005. Before Judges Alley, C.S. Fisher and Yannotti. On appeal from the Law Division, Monmouth County, GP-2005-02-005. [Sat below: Judge Neafsey.] DDS No. 26-2-2057 The six-month period within which this retired law enforcement officer had to apply for a permit to carry a handgun under N.J.S.A. 2C:39-6(l)(1) began to run on the date his application for retirement was approved, not on the retroactive effective date of his retirement; the denial of his application as untimely is reversed and the matter remanded for consideration on the merits. 182 N.J.L.J. 787 GOVERNMENT � Open Meetings � Videotaping Tarus v. Borough of Pine Hill et al , A-2072-04T1; Appellate Division; opinion by Parrillo, J.A.D.; decided and approved for publication November 23, 2005. Before Judges Parrillo, Holston and Gilroy. On appeal from the Law Division, Camden County, CAM-L-4084-03. [Sat below: Judge Little.] DDS No. 30-2-2157 Because there is no state or federal constitutional right to videotape public meetings, and the restrictions the municipal council placed on plaintiff, allowing him to videotape if he changed locations so as to exclude recording members of the audience, were not arbitrary or capricious, plaintiff’s subsequent arrest and prosecution for disorderly conduct was premised on probable cause and, therefore, there is no basis for his claims for false arrest and malicious prosecution. 182 N.J.L.J. 941 GOVERNMENT � Open Public Records Act Bent v. Township of Stafford Police Dep’t, et al, A-1456-04T1; Appellate Division; opinion by Parrillo, J.A.D.; decided and approved for publication October 21, 2005. Before Judges Cuff, Parrillo and Holston. On appeal from a final decision of the Government Records Council. DDS No. 52-2-1821 Plaintiff’s denial-of-access complaint under the OPRA was properly dismissed where the police files he requested had been given to him previously, his general request for information neither identifies nor describes with any specificity the records sought and was, in essence, a search for a response to his complaints of police misconduct that required analysis and evaluation that the agency was not required to give, and some of the requested documents did not exist or were not in the custodian’s possession. 182 N.J.L.J. 405 GOVERNMENT � Police Directors Jordan v. Harvey , A-0174-04T2, A-0202-04T2; Appellate Division; opinion by Reisner, J.A.D.; decided and approved for publication November 1, 2005. Before Judges Collester, Lisa and S.L. Reisner. On appeal from the Law Division, Mercer County, L-0801-04. [Sat below: Judge Feinberg.] DDS No. 30-2-1929 The comprehensive State statutory scheme concerning the qualifications and appointment of police officers and police chiefs, and who may enforce the criminal laws, preclude a municipality from conferring law enforcement powers on an employee without specific statutory authority, and since there is no statutory authority for conferring law enforcement powers on a police director, a municipality may not do so. 182 N.J.L.J. 602 GOVERNMENT CONTRACTS (see GOVERNMENT) GRANDPARENT VISITATION (see FAMILY LAW) GUARANTIES (see CONTRACTS) HANDGUN PERMITS (see GOVERNMENT) HARASSMENT (see FAMILY LAW) HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (see HEALTH LAW) HEALTH LAW (see also LEGAL PROFESSION) HEALTH LAW � Advanced Directives for Health Care Act � Electro-convulsive Therapy � Living Wills In the Matter of A.A. , SOM-C-12024-05; Chancery Division, Somerset County; opinion by Williams, P.J.Ch.; decided March 24, 2005, supplemented July 8, 2005; approved for publication October 11, 2005. DDS No. 22-4-1780 Where permission is sought to administer electro-convulsive therapy to the involuntarily committed patient using the consent of her daughter, the patient’s designation of her daughter as her medical decision maker in a living will executed before her deterioration and in compliance with the ADHCA eliminates the need for the formal procedures normally mandated before the involuntary administration of ECT � the daughter’s consent will substitute for the patient’s in these circumstances. 182 N.J.L.J. 353 HEALTH LAW � Appeals � Civil Commitments � Liens In the Matter of the Commitment of P.D. etc. , A-7090-03T2 and A-452-04T2; Appellate Division; opinion by Stern, P.J.A.D.; decided and approved for publication November 30, 2005. Before Judges Stern, Grall and Sapp-Peterson. On appeal from the Law Division, Camden County, CASC-1038-04 and 1126-04. DDS No. 22-2-2200 Where appellants were civilly committed to the county hospital for 30 days each, their appeals are dismissed as moot because they were both discharged at or before the 30-day period, no subsequent review proceedings have to be conducted, and the County has agreed not to collect the cost of hospitalization, irrespective of any changes to the committees’ financial condition. 182 N.J.L.J. 946 HEALTH LAW � Health Insurance Portability and Accountability Act � Right to Privacy The Community Hospital Group, Inc. v. Blume Goldfaden Berkowitz Donnelly Fried & Forte, P.C., et al, A-5561-03T1; Appellate Division; opinion by Coburn, P.J.A.D.; decided and approved for publication November 2, 2005. Before Judges Coburn, Collester and Lisa. On appeal from Chancery Division, Middlesex County, C-31-04. [Sat below: Judge Francis.] DDS No. 22-2-1944 A private cause of action cannot be maintained under the Health Insurance Portability and Accountability Act, and the judgment dismissing the complaint filed by the hospital against defendant-law firm for disclosing the health information of patients is affirmed; it also appears doubtful that plaintiff had a sufficient personal stake in the privacy rights of its patients; the denial of defendant’s request for attorneys’ fees is also affirmed. 182 N.J.L.J. 604 HEALTH LAW � Hospital Patients Bill of Rights Act � Patients’ Identities � Physician-Patient Privilege Kinsella v. NYT Television et al , A-3308-04T5; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication December 6, 2005. Before Judges Skillman, Axelrad and Levy. On appeal from the Law Division, Monmouth County, L-1836-02. [Sat below: Judge Locascio.] DDS No. 22-2-2251 The names and addresses of patients admitted to a hospital are protected from disclosure by the Hospital Patients Bill of Rights Act and the Physician-Patient privilege; plaintiff has not shown a compelling interest in learning the identity of other patients videotaped for television that outweighs their interests in maintaining the confidentiality of their hospital admissions; judicial estoppel does not apply here; the order requiring disclosure of the names and addresses to plaintiff is reversed. 182 N.J.L.J. 1051 HEIGHT RESTRICTIONS (see LAND USE and PLANNING) HOSPITAL PATIENTS BILL OF RIGHTS ACT (see HEALTH LAW) HOSTILE ENVIRONMENT (see SCHOOLS and EDUCATION) INSURANCE (see LEGAL PROFESSION) INSURANCE � Alternative Procedure for Dispute Resolution Act � Attorneys’ Fees � PIP Allstate Ins. Co. v. Sabato, A-0380-04T2; Appellate Division; opinion by Lintner, J.A.D.; decided and approved for publication October 3, 2005. Before Judges Cuff, Lintner and Gilroy. On appeal from the Law Division, Hudson County, L-2621-04. [Sat below: Judge Santiago.] DDS No. 23-2-1648 While the Law Division judge’s finding regarding the insurer’s bad faith in this PIP benefits dispute is not reviewable by the Appellate Division because of APDRA’s preclusion of appellate review (which has been judicially upheld), the decision to reduce the attorneys’ fee award is reviewable because the reasonableness of counsel fees comes within the exclusive supervisory powers of the courts; the reduction is reversed and the issue remanded for a determination whether the award complied with RPC 1.5. 182 N.J.L.J. 113 INSURANCE � Automobile Insurance Cost Reduction Act � Chiropractors � Verbal Threshold Afram v. Heller , A-4840-03T3; Appellate Division; opinion by Kestin, P.J.A.D.; decided and approved for publication October 4, 2005. Before Judges Kestin, R.B. Coleman and Seltzer. On appeal from the Law Division, Civil Part, Bergen County, L-6991-02. [Sat below: Judge Stark.] DDS No. 23-2-1662 Pensabene and Olarte are valid and controlling and a chiropractor is qualified under AICRA to render an opinion regarding causation and permanency concerning the types of injuries they treat, and the motion judge’s determination to the contrary is rejected; this matter is remanded to determine if plaintiff satisfied Oswin and whether the requirements of Polk have been met, sufficient to survive defendant’s summary judgment motion. 182 N.J.L.J. 117 INSURANCE � Automobile Insurance Cost Reduction Act � Comparative Analysis � Limitation-on-Lawsuit Threshold Davidson v. Slater et al , A-0551-04T1; Appellate Division; opinion by Conley, P.J.A.D.; decided and approved for publication October 20, 2005. Before Judges Conley, Weissbard and Winkelstein. On appeal from the Law Division, Burlington County, L-2094-03. [Sat below: Judge LeBon.] DDS No. 23-2-1807 In light of Serrano and DiProspero, it is doubtful that Polk and its progeny continue to be viable in the context of a verbal threshold summary judgment motion under AICRA (Lucky is disagreed with); to the extent that Bennett requires a comparative analysis whether aggravation is alleged or not, it is disagreed with; it was not necessary for plaintiff’s medical expert to compare the injuries from her three accidents and the dismissal of her complaint is reversed. 182 N.J.L.J. 403 INSURANCE � Automobile Insurance Cost Reduction Act � Limitation-on-Lawsuit Threshold Lucky v. Holland, A-1250-04T5; Appellate Division; opinion by Lisa, J.A.D.; decided and approved for publication October 12, 2005. Before Judges Coburn, Collester and Lisa. On appeal from the Law Division, Essex County, L-3733-03. [Sat below: Judge Davidson.] DDS No. 23-2-1735 In this limitation-on-lawsuit threshold case under AICRA, the trial judge erred in finding that plaintiff had not provided sufficient credible, objective medical evidence which could lead a rational fact finder to reasonably find that she suffered permanent injuries in this accident; further, plaintiff, who had suffered injuries to some of the same body parts in a prior accident, presented a sufficient Polk analysis, where required, except concerning the injuries to her right knee. 182 N.J.L.J. 198 Miskelly v. Lorence, A-4884-03T3; Appellate Division; opinion by Stern, P.J.A.D.; decided and approved for publication October 13, 2005. Before Judges Stern, Fall and Levy. On appeal from the Law Division, Cumberland County, L-505-91. [Sat below: Judge Michael Brooke Fisher.] DDS No. 23-2-1745 While plaintiffs need not satisfy the limitation-on-lawsuit threshold of AICRA to recover economic loss, where plaintiff alleged brain injury and cognitive impairment and sought future lost wages throughout his lifetime, such a claim is necessarily based on a permanent injury, and the trial court correctly found that the jury’s finding of no “permanent injury” precludes an award of long-term future earnings attributable to the motor vehicle accident. 182 N.J.L.J. 333 Hardison v. King et al, A-3790-04T5; Appellate Division; opinion by Lefelt, J.A.D.; decided and approved for publication November 2, 2005. Before Judges Kestin, Lefelt and R.B. Coleman. On appeal from the Law Division, Union County, L-4646-03. [Sat below: Judge Fasciale.] DDS No. 23-2-1945 The motion judge erred in dismissing plaintiff’s complaint for failure to comply with the comparative analysis required by Polk, where plaintiff alleged permanent injury solely from the latest accident and was not alleging aggravation of prior injuries, and maintained that the prior accidents were remote in time and that the injuries were minor, completely resolved, and asymptomatic at the time of the recent accident; no Polk analysis was required under these circumstances. 182 N.J.L.J. 605 Juarez v. J.A. Salerno & Sons Inc. et al, A-66 September Term 2005; Supreme Court; per curiam opinion; decided November 23, 2005. On certification to the Appellate Division, 379 N.J. Super. 91 (2005). [Sat below: Judges Kestin, Fuentes and Falcone in the Appellate Division; Judge Sapp-Peterson in the Law Division.] DDS No. 23-1-2154 Summary judgment dismissing plaintiff’s personal-injury action for damages arising out of an auto injury is reversed and the matter remanded to the trial court since, in affirming the dismissal, the Appellate Division superimposed the same serious-injury standard disapproved of in Serrano and DiProspero; it is reiterated that a plaintiff need only prove the injuries satisfy one of the threshold categories in AICRA. 182 N.J.L.J. 947 INSURANCE � Automobile Insurance Cost Reduction Act � Limitation-on-Lawsuit Threshold � Nondisplaced Fractures Kennelly-Murray v. Megill , A-0886-04T3; Appellate Division; opinion by Fisher, J.A.D.; decided and approved for publication November 17, 2005. Before Judges Alley, C.S. Fisher and Yannotti. On appeal from the Law Division, Monmouth County, MON-L-700-03. [Sat below: Judge Locascio.] DDS No. 23-2-2106 When it reconfigured the previous verbal threshold categories and replaced the “fractures” category with a “displaced fractures” category in AICRA, the Legislature did not intend to bar claims based on “non-displaced fractures,” but rather intended to relegate them to AICRA’s catch-all category that requires proof of a “permanent injury within a reasonable degree of medical probability”; summary judgment in defendant’s favor is reversed insofar as it relates to plaintiff’s claimed nondisplaced fractures. 182 N.J.L.J. 864 INSURANCE � Conscientious Employee Protection Act � Defense Costs United States Liability Ins. Group v. Security Ins. Co. of Hartford, A-2113-04T2; Appellate Division; opinion by Stern, P.J.A.D.; decided and approved for publication November 9, 2005. Before Judges Stern, Parker and Grall. On appeal from the Law Division, Camden County, L-3630-03. [Sat below: Judge Freeman.] DDS No. 23-2-2026 Plaintiff, which provided the professional liability policy for the employer in the underlying action seeking recovery under CEPA, must reimburse the employer’s workers’ compensation and employer’s liability carrier for the cost of defense in the underlying action where the plaintiff’s reference to depression, stress and anxiety is incidental to the underlying wrongful-termination CEPA claim and no objective or bodily injuries are alleged to have resulted from the depression, stress or anxiety. 182 N.J.L.J. 704 INSURANCE � Defense and Indemnification Federal Insurance Co. v. Campbell Soup Co. , A-6812-03T2; Appellate Division; opinion by Coburn, P.J.A.D.; decided and approved for publication November 9, 2005. Before Judges Coburn, Collester and S.L. Reisner. On appeal from the Law Division, Somerset County, 131-04. [Sat below: Judge Derman.] DDS No. 23-2-2027 The transfer of securities between defendant-parent corporation and its wholly owned subsidiary did not involve the “sale” or “purchase” of securities, and the underlying action challenging that transfer therefore did not arise out of a securities transaction under the unambiguous terms of the insurance policy issued to defendant; the summary judgment for plaintiff in this declaratory judgment action, finding that it had no duty under the policy to defend or indemnify defendant, is affirmed. 182 N.J.L.J. 702 INSURANCE � Employers’ Liability New Jersey Manufacturers Ins. Co. v. Delta Plastics Corp. et al, A-2126-03T5; Appellate Division; opinion by Wecker, J.A.D.; dissent by Coburn, J.A.D.; decided and approved for publication September 30, 2005. Before Judges Coburn, Wecker and S.L. Reisner. On appeal from the Law Division, Morris County, L-318-02. [Sat below: Judge Stephen F. Smith Jr.] DDS No. 23-2-1639 Adhering to the holding in Charles Beseler Co., the C-5 exclusion in the employer’s liability policy, for claims of “bodily injury intentionally caused,” does not exclude coverage for claims alleging bodily injury that resulted from employer conduct that was “substantially certain” to result in injury, and the trial judge erred in holding that plaintiff-insurer was not required to provide defendant with a defense to its employee’s complaint. 182 N.J.L.J. 115 INSURANCE � Limitation-on-Lawsuit Threshold Camacho v. Camacho , HUD-L-488-04; Law Division, Hudson County; opinion by Bariso, J.S.C.; decided July 22, 2005; approved for publication November 7, 2005. DDS No. 23-3-1140 Where plaintiff’s complaint was dismissed for failure to satisfy the “limitation on lawsuit” threshold of N.J.S.A. 39:6A-8a, because she failed to demonstrate that the injuries she sustained in the accident had a serious impact on her life, her Rule 4:50 motion for reconsideration of the dismissal is denied because DiProspero and Serrano, which eliminated the need for that showing, should not be given retroactive effect to cases such as this that were not in the pipeline when they were decided. 182 N.J.L.J. 818 INSURANCE � Medical Malpractice � Settlements Princeton Ins. Co. v. Qureshi et al, A-6382-03T5; Appellate Division; opinion by Payne, J.A.D.; decided and approved for publication October 6, 2005. Before Judges Skillman, Axelrad and Payne. On appeal from the Law Division, Essex County, L-37621-03. [Sat below: Judge Bernstein.] DDS No. 23-2-1686 Where the doctor and his two wholly owned professional corporations were insured under the same policy affording $1 million coverage to each, a judge determined that the later would be vicariously liable for a judgment against the former, and an adverse verdict exceeding the policy limit was highly likely, the insurer acted in bad faith in refusing plaintiff’s offer to settle with one of the corporations for its coverage limits, and is therefore liable for the entire excess judgment. 182 N.J.L.J. 184 INSURANCE � Step-Down Provisions � UM/UIM Coverage National Union Fire Ins. Co. of Pittsburgh, Pa. v. Jeffers et al , A-2053-04T1; Appellate Division; opinion by Lintner, J.A.D.; decided and approved for publication October 18, 2005. Before Judges Lintner, Parrillo and Holston. On appeal from the Law Division, Camden County, L-4913-02. [Sat below: Judge Little.] DDS No. 23-2-1781 Because the underinsurance coverage provided to defendant by his personal Pennsylvania insurance policy (excess coverage) was not “similar” to the coverage provided by the commercial auto policy issued by plaintiff to his employer in New Jersey (gap coverage), the step-down provision limiting coverage in the New Jersey policy was not triggered, and the trial court erred in holding that the New Jersey policy did not provide additional UIM coverage above that provided by defendant’s personal policy. 182 N.J.L.J. 336 Morrison v. American International Insurance Company of America, A-3483-04T3; Appellate Division; opinion by Sapp-Peterson, P.J.Cv. (temporarily assigned); decided and approved for publication December 9, 2005. Before Judges Fall, Grall and Sapp-Peterson. On appeal from the Law Division, Atlantic County, L-0459-04. [Sat below: Judge William C. Todd III.] DDS No. 23-2-2298 Where the entire policy consisted of only 15 pages, the step-down language in the endorsement clearly stated that coverage for bodily injury was limited for persons other than the named insured or resident family member, and the language was placed in the section titled “limits of liability,” the policy, when read in its entirety, clearly placed the insured on notice of the coverage limitations, and the judgment that the policy is not ambiguous is affirmed. 182 N.J.L.J. 1116 INTELLECTUAL PROPERTY (see LABOR LAW) JUDGES � Confidentiality � Discipline � Subpoenas State v. Clark et al , A-0789-05T1; Appellate Division; opinion by Wefing, P.J.A.D.; decided and approved for publication October 21, 2005. Before Judges Wefing, Fuentes and Graves. On appeal from the Law Division, Bergen County, No. SGJ-04-10. [Sat below: Judge Meehan.] DDS No. 14-2-1824 Where defendant-municipal court judge was indicted, and the ACJC suspended its investigation once the indictment was returned, the trial court erred in quashing the State’s subpoena for defendant’s statements to the ACJC during its investigation; the necessity to ensure the integrity and accuracy of the criminal proceeding must take precedence over the confidentiality provisions of Rule 2:15-20, particularly where there is no unfairness to the judge and the ACJC’s functions will not be hampered. 182 N.J.L.J. 401 JURIES (see CRIMINAL PRACTICE) JURISDICTION (see LAND USE and PLANNING) JUVENILES (see CRIMINAL PRACTICE) LABOR LAW � Intellectual Property � Patents � Rutgers University Rutgers Council of AAUP Chapters v. Rutgers, The State University , A-4837-03T1; Appellate Division; opinion by Wefing, P.J.A.D.; decided and approved for publication October 20, 2005. Before Judges Wefing, Wecker and Graves. On appeal from the Public Employment Relations Commission, SN-2003-0056. DDS No. 33-2-1808 PERC erred in determining that the provisions in Rutgers’ Patent Policy declaring University ownership of laboratory notebooks were mandatorily negotiable and in ordering the parties to engage in negotiations to specify more precisely when an individual is required to disclose to Rutgers an invention or discovery; it correctly determined that Rutgers was required to negotiate the terms, including royalty income, under which inventions and discoveries are assigned to Rutgers. 182 N.J.L.J. 404 LAND USE and PLANNING � Coastal Area Facility Review Act � Jurisdiction B&J Realty, L.L.C. v. New Jersey Dep’t of Environmental Protection, A-1931-03T5; Appellate Division; opinion by Lisa, J.A.D.; decided and approved for publication October 18, 2005. Before Judges Coburn, Collester and Lisa. On appeal from a final decision of the New Jersey Department of Environmental Protection, 50951/01. DDS No. 17-2-1779 DEP’s assertion of CAFRA jurisdiction over appellant’s proposed residential development based on a previously issued permit that plainly does not apply to the property is arbitrary and capricious and is reversed; with respect to the accuracy of the location of the mean high water line on its plans, appellant has raised a bona fide dispute regarding a material fact that will be dispositive of CAFRA jurisdiction and is entitled to an adjudicatory hearing to resolve the factual dispute. 182 N.J.L.J. 336 LAND USE and PLANNING � Downzoning Bailes v. Township of East Brunswick et al, A-2132-03T5; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication September 22, 2005. Before Judges Skillman, Grall and Riva. On appeal from the Law Division, Middlesex County, L-10864-99 and L-12068-99. [Sat below: Judge Hurley.] DDS No. 26-2-1561 In this challenge to the zoning ordinances that downzoned the permitted densities in the district in which plaintiffs’ properties are located from one unit per acre or per two acres to one unit per six acres, with cluster options, the ordinances are invalid as applied to plaintiffs’ properties because the downzoning is not required to serve the stated purposes of the ordinances and does not reflect reasonable consideration of existing development in the areas surrounding plaintiffs’ properties. 181 N.J.L.J. 45 LAND USE and PLANNING � Downzoning � Farmland Preservation New Jersey Farm Bureau, Inc. v. Township of East Amwell et al, A-0912-02T2; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication September 22, 2005. Before Judges Skillman, Grall and Riva. On appeal from the Law Division, Somerset County, L-513-01. [Sat below: Judge Hoens.] DDS No. 26-2-1560 The trial court’s judgment upholding an ordinance that increased the minimum lot size in this rural community’s agricultural district from three to 10 acres is affirmed; it is reasonably related to encouraging agriculture, is consistent with the State Plan, and is not exclusionary zoning since, under Mount Laurel II, once a municipality meets its obligations for low- and moderate-income housing, it has no obligation to provide through zoning for a variety of other forms of housing. 182 N.J.L.J. 49 LAND USE and PLANNING � Eminent Domain � Height Restrictions � Underground Parking First Montclair Partner, L.P. v. Herod Redevelopment I, L.L.C. , A-0006-04T3; Appellate Division; opinion by Fisher, J.A.D.; decided and approved for publication November 15, 2005. Before Judges Alley, C.S. Fisher and Yannotti. On appeal from the Law Division, Essex County, ESX-L-1539-04. [Sat below: Judge Rothschild.] DDS No. 26-2-2075 Where the planning board adopted a redevelopment plan that included a seven-story building with an underground parking garage, the board’s view that the subterranean floor is not a “story” is entitled to deference even though the local ordinance includes an underground parking area as a “story”; the board’s consideration of the height of the proposed structure comported with a reasonable construction of the redevelopment plan’s terms and regulations. 182 N.J.L.J. 788 LAND USE and PLANNING � Redevelopment ERETC, L.L.C. v. City of Perth Amboy et al , A-2035-04T2; Appellate Division; opinion by Parker, J.A.D.; decided and approved for publication November 15, 2005. Before Judges Fall, Parker and Grall. On appeal from the Law Division, Middlesex County, L-10151-01. [Sat below: Judge Hurley.] DDS No. 26-2-2074 The city’s inclusion of plaintiff’s property in an area designated in need of redevelopment was not supported by substantial evidence; there was no evidence to support the determination that the buildings were “substandard, unsafe, unsanitary, dilapidated, or obsolescent,” nor any investigation as to whether the properties were “properly utilized,” “fully productive” or “potentially useful and valuable for contributing to and serving the public health, safety and welfare,” as required by N.J.S.A. 40A:12A-5. 182 N.J.L.J. 810 LANDSCAPE IRRIGATION CONTRACTORS (see CONSUMER PROTECTION) LAW AGAINST DISCRIMINATION (see SCHOOLS and EDUCATION) LEGAL PROFESSION � Assessments � Constitutional Law � Evidence � Health Law � Insurance � Student Loans New Jersey State Bar Association v. State of New Jersey , UNN-C-1-05; Chancery Division, Union County; opinion by Lyons, P.J.Ch.; decided June 15, 2005; approved for publication October 11, 2005. DDS No. 04-4-0612 The assessment on attorneys prescribed by the New Jersey Medical Care Access and Responsibility and Patients First Act does not violate plaintiffs’ due process and equal protection rights; the financial interdependence between the Bar and a stable health-care system is apparent, and plaintiffs have not met their burden of showing that the classification is wholly irrelevant or unrelated to the achievement of the government’s objective of assuring access to health-care services. 182 N.J.L.J. 338 LEGAL PROFESSION � Attorney Discipline � Confidentiality R.M. v. Supreme Court of New Jersey et al, A-89 September Term 2004; Supreme Court; opinion by Zazzali, J.; concurrences by Poritz, C.J., and Zazzali, J.; decided October 19, 2005. On certification to the Law Division, Mercer County. DDS No., 04-1-1791 As written and as applied, Rule 1:20-9, which mandates that a grievance filed against an attorney remain confidential until a formal complaint is filed, violates the First Amendment because it is not narrowly tailored to serve a compelling interest; a grievant may discuss publicly the fact that he filed a grievance, the content of that grievance, and the result of the process; this holding shall have pipeline retroactively and the confidentiality of concluded matters shall remain in effect. 182 N.J.L.J. 329 LEGAL PROFESSION � Attorney’s Lien Act � Fee Disputes Levine v. Levine , A-2596-03T1; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication October 14, 2005. Before Judges Skillman, Axelrad and Payne. On appeal from the Chancery Division, Family Part, Somerset County, FM-18-1028-99. [Sat below: Judge Dilts.] DDS No. 04-2-1754 The Attorney’s Lien Act does not authorize a trial court to dismiss a petition for an attorney’s lien based on its preliminary view, derived from the evidence presented in the underlying action, that the fees claimed by the attorney are excessive; this determination must be based on evidence presented at a plenary hearing, not, as occurred here, on the court’s findings on an application for an award of fees against the opposing party in the underlying action, to which the attorney was not a party. 182 N.J.L.J. 334 LIENS (see HEALTH LAW) LIMITATION-ON-LAWSUIT THRESHOLD (see INSURANCE) LIMITATIONS OF ACTIONS (see REAL PROPERTY) LIVING WILLS (see HEALTH LAW) MEDICAL MALPRACTICE (see INSURANCE) MEGAN’S LAW (see CRIMINAL PRACTICE) MINIMUM WAGES (see GOVERNMENT) MORTGAGE CONTINGENCIES (see REAL PROPERTY) MUNICIPALITIES (see GOVERNMENT) MUTUAL MISTAKE (see WORKERS’ COMPENSATION) NEGLIGENCE (see REAL PROPERTY, TORTS) NONDISPLACED FRACTURES (see INSURANCE) OFFICIAL MISCONDUCT (see CRIMINAL PRACTICE) OPEN MEETINGS (see GOVERNMENT) OPEN PUBLIC RECORDS ACT (see GOVERNMENT) PAROLEES AND PROBATIONERS (see ELECTION LAW) PATENTS (see LABOR LAW) PATIENTS’ IDENTITIES (see HEALTH LAW) PHOTOGRAPHS (see CRIMINAL PRACTICE) PHYSICIAN-PATIENT PRIVILEGE (see HEALTH LAW) PHYSICIANS (see EVIDENCE) PIP (see INSURANCE) PLEA AGREEMENTS (see CRIMINAL PRACTICE) POLICE (see GOVERNMENT) POLICE DIRECTORS (see GOVERNMENT) POLICE OFFICERS (see GOVERNMENT) POLYGRAPH EXAMINATIONS (see CRIMINAL PRACTICE) POST-CONVICTION RELIEF (see CRIMINAL PRACTICE) PRISON DISCIPLINARY HEARINGS (see CRIMINAL PRACTICE) PRISONS (see CRIMINAL PRACTICE) PROBABLE CAUSE HEARINGS (see CRIMINAL PRACTICE) PRODUCTS LIABILITY (see also TORTS) PRODUCTS LIABILITY � Apportionment of Fault � Damages � Design Defects � Wrongful Death Boryszewski v. Burke et al , A-2071-02T2; Appellate Division; opinion by Kestin, P.J.A.D.; decided and approved for publication September 27, 2005. Before Judges Kestin, Alley and Fuentes. On appeal from the Law Division, Civil Part, Hudson County, HUD-L-9726-98. [Sat below: Judge Messano.] DDS No. 32-2-1606 In this products liability, design-defect/crashworthiness case, the first trial’s liability verdict against the auto maker is affirmed, but the judge erred in not instructing on apportionment of fault, and this issue is remanded for retrial; vacating the emotional distress damage awards to the deceased’s sons was error and they are reinstated; the first wrongful death damage award was properly vacated and the second award is affirmed; the settlement with certain defendants does not violate public policy. 182 N.J.L.J. 50 PROPERTY TAXES (see TAXATION) PROSECUTORS (see CRIMINAL PRACTICE) PUBLIC EMPLOYEES (see ATTORNEYS’ FEES, GOVERNMENT, TORTS) RACIAL PROFILING (see CRIMINAL PRACTICE) REAL ESTATE (see REAL PROPERTY) REAL PROPERTY � Condemnation � Easements Milford Borough v. Arnold , HNT-L-733-02; Law Division, Hunterdon County; opinion by Buchsbaum, J.S.C.; decided August 26, 2005; approved for publication November 7, 2005. DDS No. 44-3-1395 In this condemnation action where the scope of the condemnation is challenged, the deeds of 1867 and 1893, though subsequently omitted in the chain of title, granted a permanent dedication of areas on defendant’s land as roadways, none of the actions cited by defendant constitute a legislative action of abandonment, and various municipal actions over the years provide sufficient evidence of acceptance of the land dedicated in the old deeds, and that property need not be included in this action. 182 N.J.L.J. 810 REAL PROPERTY � Condominium Associations � Negligence Siddons v. Cook , A-1835-04T1; Appellate Division; opinion by Winkelstein, J.A.D.; decided and approved for publication December 16, 2005. Before Judges Conley, Winkelstein and Sabatino. On appeal from the Law Division, Atlantic County, ATL-L-2360-03. [Sat below: Judge Todd.] DDS No. 34-2-2362 Where the condominium association knew of prior problems with dishwasher hoses in the units, it had a duty to warn unit owners of a potential flooding hazard, and whether it breached its duty is a question for the jury; however, since the owners of the unit in which the leak occurred had no reason to know of any problem, plaintiff’s negligence claim against them was properly dismissed on summary judgment. 182 N.J.L.J. 1199 REAL PROPERTY � Condominiums � Disabilities � Limitations of Actions Alliance for Disabled in Action Inc. (ADA) v. Renaissance Enterprises Inc. et al, A-79/88 September Term 2004; Supreme Court; per curiam opinion; decided December 1, 2005. On certification to the Appellate Division, 371 N.J. Super. 409 (App. Div. 2004). [Sat below: Judges Wefing, Collester and Fuentes in the Appellate Division; Judge Epstein in the Law Division.] DDS No. 34-1-2212 Where the condominium project received approval for the prototype plan for the units, and received construction permits over a four-year period, the appropriate start date for applying the statute of limitations for filing a discrimination claim is the date the last certificate of occupancy was issued; also, it is impossible to infer from the record that the construction official willfully and knowingly approved the plans, intending to further housing that did not comply with the Barrier Free Subcode. 182 N.J.L.J. 947 Alliance for Disabled in Action Inc. (ADA) v. Continental Properties et al, A-87 September Term 2004; Supreme Court; per curiam opinion; decided December 1, 2005. On certification to the Appellate Division, 371 N.J. Super. 398 (App. Div. 2004). [Sat below: Judges Wefing, Collester and Fuentes in the Appellate Division; Judge Epstein in the Law Division.] DDS No. 34-1-2213 Where the condominium project received approval for the prototype plan for the units and received construction permits over a four-year period, the holding of the Appellate Division, that the trial court erred in refusing to apply the continuing-violation doctrine, is affirmed substantially for the reasons expressed below. 182 N.J.L.J. 947 REAL PROPERTY � Condominiums � Fees Micheve, L.L.C. v. Wyndham Place at Freehold Condominium Assoc., A-1014-04T2; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication November 3, 2005. Before Judges Skillman, Payne and Levy. On appeal from the Law Division, Monmouth County, Special Civil Part, DC-12868-03. [Sat below: Judge Mark A. Sullivan Jr.] DDS No. 34-2-1966 The imposition by defendant-condominium association of a nonrefundable capital contribution fee whenever there is a transfer of title to a condominium unit violates the provisions of the Condominium Act requiring that the common expenses for maintenance of the common elements be charged to all unit owners based on their proportionate individual interests in the common element, as well as defendant’s master deed and bylaws; plaintiff is entitled to recover the fee paid. 182 N.J.L.J. 617 REAL PROPERTY � Eminent Domain � Fair Housing � Valuation Mount Laurel Township et al v. Stanley et al , A-103/104 September Term 2004; Supreme Court; per curiam opinion; decided November 21, 2005. On certification to the Appellate Division. [Sat below: Judges Conley, Braithwaite and Lisa in the Appellate Division; Judge Sweeney in the Law Division.] DDS No. 44-1-2130 Where the increase in the value of property from the entry of the judgment of repose until the filing of the condemnation complaint five years later was caused by inflationary circumstances, and the judgment of repose did not cause any fluctuation in value that is directly attributable to future condemnation, the “earliest” event that defines the proper date of valuation is the filing of the complaint; the trial court erred in applying the judgment of repose, based on N.J.S.A. 20:3-30(c). 182 N.J.L.J. 861 REAL PROPERTY � Mortgage Contingencies � Real Estate Davis v. Strazza et al, A-3529-03T2; Appellate Division; opinion by Yannotti, J.A.D.; decided and approved for publication October 4, 2005. Before Judges Alley, C.S. Fisher and Yannotti. On appeal from the Law Division, Essex County, L-11159-01. [Sat below: Judge Simonelli.] DDS No. 34-2-1665 Where the contract to purchase real estate was contingent on defendants obtaining mortgage financing, and a commitment was issued but was conditioned on their selling of their properties, and was then cancelled because they were unable to do so, under Farrell and McKenna, the contract’s mortgage contingency clause was not satisfied and defendants had the right to cancel the contract and to a return of their deposit, where they made good-faith efforts to sell the property. 182 N.J.L.J. 117 REDEVELOPMENT (see LAND USE and PLANNING) REFUNDS (see CONSUMER PROTECTION) RES IPSA LOQUITUR (see TORTS) RETIRED POLICE OFFICERS (see GOVERNMENT) RIGHT TO COUNSEL (see CRIMINAL PRACTICE) RIGHT TO PRIVACY (see HEALTH LAW) RUTGERS UNIVERSITY (see LABOR LAW) SCHOOLS and EDUCATION � Asset Allocation � Dissolution of Regional Districts In re the Division of Assets of Lower Camden County Regional High School District No. 1 , A-1595-03T5, A-1616-03T5, A-1668-03T5; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication October 26, 2005. Before Judges Skillman, Axelrad and Francis. On appeal from State Board of Education. DDS No. 16-2-1867 The Commissioner of Education and State Board of Education reasonably determined, under In re Union County, that the liquid assets of this now-dissolved regional high school district should be distributed solely to the constituent districts of the former regional district that did not receive any distribution of buildings and real estate; agreement among the constituents is not a prerequisite to deviation from strict application of the distribution formula in N.J.S.A. 18A:8-24. 182 N.J.L.J. 406 SCHOOLS and EDUCATION � Constitutional Rights LoPresti v. Galloway Township Middle School et al , ATL-L-1471-04; Law Division, Atlantic County; opinion by Armstrong, A.J.S.C.; decided July 19, 2005; approved for publication November 7, 2005. DDS No. 16-3-2069 That part of defendant-school’s cafeteria policy which compels students to sit at their designated tables and remain seated, unless permission to move about is given, was rationally enacted to maintain order and protect the students’ safety and does not limit expressive or symbolic speech and thus does not violate the students’ First and Fourteenth Amendment rights; defendants’ motion to dismiss this � 1983 action brought on behalf of plaintiff’s daughter seeking to permanently enjoin the policy is granted. 182 N.J.L.J. 819 SCHOOLS and EDUCATION � Hostile Environment � Law Against Discrimination � Sexual Orientation L.W. v. Toms River Regional Schools Board of Education , A-7084-03T5; Appellate Division; opinion by Yannotti, J.A.D.; partial dissent by Alley, J.A.D.; decided and approved for publication December 7, 2005. Before Judges Rodriguez, Alley and Yannotti. On appeal from a final administrative decision of the director of the Division on Civil Rights. DDS No. 16-2-2263 A claim against a school district may be brought under the LAD for peer harassment that is based on an individual’s perceived sexual orientation if the harassment rises to the level of a denial of the “advantages, facilities or privileges” of a public school; the principles for determining whether such harassment constitutes a violation of N.J.S.A. 10:5-12(f) are substantially the same as those that are employed to determine whether sexual harassment creates a hostile work environment. 182 N.J.L.J. 1045 SEARCH AND SEIZURE (see CRIMINAL PRACTICE) SENTENCING (see CRIMINAL PRACTICE) SETTLEMENTS (see CIVIL PRACTICE, INSURANCE, WORKERS’ COMPENSATION) SEX OFFENDER REGISTRATION (see CRIMINAL PRACTICE) SEXUAL ASSAULT (see CRIMINAL PRACTICE) SEXUAL ORIENTATION (see SCHOOLS and EDUCATION) STATE POLICE (see GOVERNMENT) STEP-DOWN PROVISIONS (see INSURANCE) STUDENT LOANS (see LEGAL PROFESSION) SUBPOENAS (see JUDGES) SUMMARY JUDGMENT (see EMPLOYMENT) SUPERMARKETS (see TORTS) TAXATION � Exemptions � Property Taxes International Schools Services, Inc. v. West Windsor Township , A-2017-04T2; Appellate Division; opinion by Fisher, J.A.D.; decided and approved for publication November 30, 2005. Before Judges A.A. Rodriguez, Alley and C.S. Fisher. On appeal from a decision of the Tax Court, 21 N.J. Tax 553. DDS No. 35-2-2205 N.J.S.A. 54:4-3.6 contains a general exemption for entities organized for educational purposes and courts are not barred from considering extrinsic information in determining if an organization is organized for such purposes; where the tax judge interpreted appellant’s certificate of incorporation through her limited view of its meaning and scope, and failed to resolve all doubts in appellant’s favor, and without resort to relevant extrinsic evidence, summary judgment in favor of the township is reversed. 182 N.J.L.J. 945 TORT CLAIMS ACT (see TORTS) TORTS � Assault and Battery � Public Employees � Tort Claims Act � Verbal Threshold Kelly v. County of Monmouth et al , A-4178-03T3; Appellate Division; opinion by Fisher, J.A.D.; decided and approved for publication October 12, 2005. Before Judges Alley, C.S. Fisher and Yannotti. On appeal from the Law Division, Monmouth County, MON-L-1430-01. [Sat below: Judge Cavanaugh.] DDS No. 36-2-1738 The verbal threshold of the Tort Claims Act does not apply to tort claims asserted against a public employee that are based on willful misconduct or conduct outside the scope of his employment; here, the trial court’s summary judgment dismissing plaintiff’s assault and battery claims is reversed and the matter is remanded to determine the unresolved questions of fact pivotal to determining whether defendant-public employee acted willfully or outside the scope of his employment. 182 N.J.L.J. 197 TORTS � Automatic Doors � Negligence � Res Ipsa Loquitur � Supermarkets Jerista v. Murray , A-5 September Term 2004; Supreme Court; opinion by Albin, J.; decided October 12, 2005. On appeal from the Appellate Division, 367 N.J. Super. 292 (App. Div. 2004). [Sat below: Judges Kestin, Axelrad and Lario in the Appellate Division; Judge Jonathan N. Harris in the Law Division.] DDS No. 31-1-1736 When an automatic door closes on a customer, injuring her, res ipsa loquitur permits a jury to infer, based on common knowledge, that such doors ordinarily do not malfunction unless negligently maintained by the store owner; since plaintiffs were entitled to that inference to establish a prima facie case in their personal-injury suit against Shop Rite, the trial judge erred in dismissing this malpractice action against the attorney whose derelictions allegedly led to dismissal of that action. 182 N.J.L.J. 181 TORTS � Condominium Associations � Defamation Gulrajaney v. Petricha et al , A-4103-03T2; Appellate Division; opinion by Levy, P.J.Ch. (temporarily assigned); decided and approved for publication November 14, 2005. Before Judges Stern, Parker and Levy. On appeal from the Law Division, Hudson County, L-2523-02. [Sat below: Judge D'Italia.] DDS No. 01-2-2062 Where defendant wrote an allegedly defamatory e-mail about plaintiff, who was running for the condominium association’s board of directors, regarding his failure to make repairs during defendant’s purchase of a unit from him, and the e-mail was posted online on the condominium’s message board and a flyer distributed, as a board candidate plaintiff was a public figure and, because defendant was unaware that plaintiff was not obligated to make the repairs, there was no actual malice. 182 N.J.L.J. 809 TORTS � Product Liability Agurto v. Guhr , A-0967-04T5; Appellate Division; opinion by Reisner, J.A.D.; decided and approved for publication December 9, 2005. Before Judges Coburn, Lisa and S.L. Reisner. On appeal from the Law Division, Essex County, L-6309-02. [Sat below: Judge Winard.] DDS No. 32-2-2302 Under the strict-liability exception for the “casual” or “occasional” seller of goods, the term “occasional” does not mean “once in a while” but that the selling of the goods at issue is not part of the “purpose” of the seller’s business; here, giving him the benefit of all favorable inferences, plaintiff was entitled to a trial on the issue of whether defendant was a seller under the Product Liability Act, which is an issue of duty that the court must decide. 182 N.J.L.J. 1117 UM/UIM COVERAGE (see INSURANCE) UNDERGROUND PARKING (see LAND USE and PLANNING) UNEMPLOYMENT COMPENSATION � Eligibility McCoy v. Board of Review, Dep’t of Labor et al , A-1552-04T5; Appellate Division; opinion by Payne, J.A.D.; decided and approved for publication November 7, 2005. Before Judges Skillman, Axelrad and Payne. On appeal from Board of Review, Department of Labor, Docket No. 37,845. DDS No. 25-2-2000 To be “available for work,” a potential employee must show an ability and willingness to conform to a reasonable work schedule offered by the employer; since this formerly full-time home health aide did not make herself available for an uninterrupted period of work normally offered by her employer, but instead demanded a schedule of interrupted hours that accommodated her school schedule that, in sum, constituted full-time employment, partial unemployment compensation benefits were properly denied. 182 N.J.L.J. 684 VALUATION (see REAL PROPERTY) VERBAL THRESHOLD (see INSURANCE, TORTS) VICTIMS’ RIGHTS (see CRIMINAL PRACTICE) VIDEOTAPING (see GOVERNMENT) WHISTLEBLOWERS (see EMPLOYMENT) WORKERS’ COMPENSATION � Mutual Mistake � Settlements Wallace v. Summerhill Nursing Home , A-6419-03T1; Appellate Division; opinion by Fuentes, J.A.D.; decided July 15, 2005; approved for publication October 13, 2005. Before Judges Lefelt, Alley and Fuentes. On appeal from New Jersey Department of Labor, Division of Workers’ Compensation, Petitioner No. 99-39526. [Sat below: Judge Cruz.] DDS No. 39-2-0997 The workers’ compensation judge erred in refusing to set aside the settlement of petitioner’s workers’ compensation case based on mutual mistake where the attorneys involved in negotiating the settlement did not realize that petitioner had already received voluntary payments that exceeded the amount of the settlement; petitioner is entitled to fair compensation for his injury but not to more than double his recovery merely because the attorneys were unaware of the prior payments. 182 N.J.L.J. 333 WRONGFUL DEATH (see PRODUCTS LIABILITY)

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