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ACCOUNTANTS (see FAMILY LAW) ADMINISTRATIVE HEARINGS (see ENVIRONMENTAL LAW) ADMINISTRATIVE LAW � Developmental Disabilities T.H. v. Division of Developmental Disabilities , A-114 September Term 2005; Supreme Court; opinion by Long, J.; decided March 1, 2007. On certification to the Appellate Division, 381 N.J. Super. 366 (App. Div. 2005). [Sat below: Judges Stern, Coburn and Wecker in the Appellate Division.] DDS No. 22-1-6656 [30 pp.] The regulatory imposition of a requirement that an applicant for services develop substantial functional limitations in three major life areas before age 22 exceeded the Division of Developmental Disabilities’ statutory authority. 187 N.J.L.J. 881 ADULT ADOPTIONS (see FAMILY LAW) ADVERSE INFERENCES (see CRIMINAL PRACTICE) AFFORDABLE HOUSING (see REAL PROPERTY) ALTERNATE DISPUTE RESOLUTION � Condominiums Finderne Heights Condominium Association, Inc. v. Rabinowitz et al , A-6135-04T1; Appellate Division; opinion by Lyons, J.S.C. (temporarily assigned); decided and approved for publication January 23, 2007. Before Judges Stern, A.A. Rodr�guez and Lyons. On appeal from the Chancery Division, Somerset County, C-12007-05. [Sat below: Judge Williams.] DDS No. 34-2-6240 [15 pp.] N.J.S.A. 46:8b-14(k) does not require ADR as a prerequisite to litigation, but once a suit is filed, the respondent may seek to have the matter sent to ADR. 187 N.J.L.J. 350 ARBITRATION � Construction Contracts � Consumer Fraud Act � New Jersey Arbitration Act Block v. Plosia et al , A-4919-05T1; Appellate Division; opinion by Sabatino, J.S.C. (temporarily assigned); decided and approved for publication February 23, 2007. Before Judges Collester, Lyons and Sabatino. On appeal from the Law Division, Essex County, L-1544-06. [Sat below: Judge Leath.] DDS No. 03-2-6586 [21 pp.] Under the Arbitration Act, an arbitrator may not award CFA treble damages and counsel fees unless all parties had reasonable advance notice that the scope of arbitration may include such extraordinary remedies. 187 N.J.L.J. 882 ASSESSMENTS (see REAL PROPERTY) “AT-FAULT” ACCIDENTS (see INSURANCE) ATTORNEY TRUST ACCOUNTS (see BANKING) ATTORNEYS’ FEES (see FAMILY LAW, GOVERNMENT) AUTISM (see INSURANCE) AUTO INSURANCE (see INSURANCE) AUTOMOBILE INSURANCE COST REDUCTION ACT (see INSURANCE) AUTOMOBILES (see INSURANCE) BAIL BONDS (see CRIMINAL PRACTICE) BANKING � Attorney Trust Accounts � Limitations of Actions � Negotiable Instruments � Uniform Commercial Code Psak, Graziano, Piasecki & Whitelaw v. Fleet National Bank et al , A-6785-04T1; Appellate Division; opinion by Parrillo, J.A.D.; decided and approved for publication January 26, 2007. Before Judges Lefelt, Parrillo and Sapp-Peterson. On appeal from the Law Division, Special Civil Part, Somerset County, DC-4353-04. DDS No. 06-2-6281 [12 pp.] Plaintiff’s sole remedy to collect an overcharge on a check written on its trust account is under the UCC and is time-barred by the UCC’s three-year statute of limitations; the discovery rule does not apply to actions such as this. 187 N.J.L.J. 433 BANKING � Check-Cashing Agencies � Dishonored Checks � Holders in Due Course Triffin v. Bank of America et al , A-2422-05T2; Appellate Division; opinion by Winkelstein, J.A.D.; decided and approved for publication March 6, 2007. Before Judges Winkelstein, Fuentes and Baxter. On appeal from the Law Division, Special Civil Part, Gloucester County, DC-2125-05. [Sat below: Judge Allen-Jackson.] DDS No. 06-2-6693 [10 pp.] Neither the express terms nor the public policy of the Check Cashers Regulatory Act prohibits a licensee from assigning its rights to a dishonored check to a person who has had a civil fraud judgment entered against him. 187 N.J.L.J. 1011 BANKRUPTCY (see WORKERS’ COMPENSATION) BOARDS OF SCHOOL ESTIMATE (see SCHOOLS and EDUCATION) BURDEN OF PROOF (see INSURANCE) BUSES (see INSURANCE) CERTIFICATES OF NEED (see HEALTH LAW) CHECK-CASHING AGENCIES (see BANKING) CHILD SEXUAL ASSAULT (see CRIMINAL PRACTICE) CHILD SUPPORT (see FAMILY LAW) CHOICE OF LAW (see CIVIL PRACTICE) CIVIL COMMITMENTS (see HEALTH LAW) CIVIL PRACTICE (see also CRIMINAL PRACTICE, EMPLOYMENT) CIVIL PRACTICE � Choice of Law � Jurisdiction Mastondrea v. Occidental Hotels Management S.A. , A-6412-05T3; Appellate Division; opinion by Payne, J.A.D.; decided and approved for publication March 9, 2007. Before Judges Kestin, Weissbard and Payne. On appeal from the Law Division, Union County, L-704-04. [Sat below: Judge Alcazar.] DDS No. 31-2-6747 [40 pp.] Although there were sufficient contacts with New Jersey, based on its marketing activities with New Jersey and Florida companies, to support specific personal jurisdiction, Mexican law applies to the issues of comparative negligence and damages for plaintiff’s injuries while staying at the hotel. 187 N.J.L.J. 1081 CIVIL PRACTICE � Class Actions � Utilities Muise v. GPU Inc., et al, A-6580-05T3; Appellate Division; opinion by Lintner, J.A.D.; decided and approved for publication March 7, 2007. Before Judges Lintner, Seltzer and C.L. Miniman. On appeal from the Law Division, Monmouth County, L-3587-99. [Sat below: Judge Perri.] DDS No. 37-2-6718 [17 pp.] The decisions in Thiedemann v. Mercedes-Benz USA, L.L.C., and Dabush v. Mercedes-Benz USA, L.L.C., are limited to Consumer Fraud Act claims arising out of defects fixed by manufacturers under warranties, and do not apply to this case alleging negligence by a utility. 187 N.J.L.J. 1013 CIVIL PRACTICE � Discovery � Dismissals Cooper v. Consolidated Rail Corporation, A-0073-06T1; Appellate Division; opinion by Baxter, J.S.C. (temporarily assigned); decided and approved for publication February 28, 2007. Before Judges Winkelstein, Fuentes and Baxter. On appeal from the Law Division, Union County, L-1059-04. [Sat below: Judge Brock.] DDS No. 07-2-6635 [12 pp.] No matter how allegedly inattentive their first lawyer may have been prior to the first motion to dismiss for failure to provide discovery, plaintiffs fully understood that they had 90 days thereafter in which to remedy the situation but did not, and the dismissal with prejudice is affirmed. 187 N.J.L.J. 885 CIVIL PRACTICE � Discovery � Dismissals � Medical Examinations Kwiatkowski v. Gruber et al, A-3845-05T5; Appellate Division; opinion by Coburn, P.J.A.D.; decided and approved for publication February 1, 2007. Before Judges Coburn, Axelrad and Gilroy. On appeal from the Law Division, Passaic County, L-5121-04. [Sat below: Judge Brogan.] DDS No. 07-2-6348 [4 pp.] The order dismissing plaintiff’s personal-injury action without prejudice for failure to appear at a court-ordered medical exam was not a final disposition appealable as of right. 187 N.J.L.J. 511 CIVIL PRACTICE � Discrimination � Employment � Punitive Damages Tarr v. Bob Ciasulli’s Mack Auto Mall Inc. , A-6383-04T3; Appellate Division; opinion by LeFelt, P.J.A.D.; dissent by Sapp-Peterson, J.A.D.; decided and approved for publication February 26, 2007. Before Judges Lefelt, Parrillo and Sapp-Peterson. On appeal from the Law Division, Ocean County, L-986-98. [Sat below: Judge John A. Peterson Jr.] DDS No. 25-2-6608 [19 pp.] While general deterrence remains inherent in the nature of exemplary damages, the Punitive Damages Act does not permit counsel to urge the jury to increase a punitive damage award in order to enhance the general deterrence of others. 187 N.J.L.J. 885 CIVIL PRACTICE � Reinstatement Ghandi v. Cespedes, A-1637-05T1; Appellate Division; opinion by Gilroy, J.A.D.; decided and approved for publication January 24, 2007. Before Judges Coburn, R.B. Coleman and Gilroy. On appeal from the Law Division, Passaic County, L-4484-03. [Sat below: Judge Brogan.] DDS No. 07-2-6248 [7 pp.] Absent a finding of fault by the plaintiff and prejudice to the defendant, a motion to restore under Rule 1:13-7(a) should be viewed with great liberality. 187 N.J.L.J. 351 CIVIL PRACTICE � Self-Incriminating Testimony All Modes Transport Inc. v. Hecksteden et al, A-0361-05T5; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication December 27, 2006. Before Judges Skillman, Lisa and Grall. On appeal from the Law Division, Morris County, L-314-02. [Sat below: Judge Wilson.] DDS No. 07-2-5995 [17 pp.] The trial court erred in interrupting defendant’s cross-examination to warn him that continuation of his testimony could result in a referral to the appropriate prosecuting authority. 187 N.J.L.J. 41 CLASS ACTIONS (see CIVIL PRACTICE) COLLEGE EXPENSES (see FAMILY LAW) COMMERCIAL LEASES (see REAL PROPERTY) COMMITMENTS (see CRIMINAL PRACTICE) CONDEMNATION (see REAL PROPERTY) CONDOMINIUMS (see ALTERNATE DISPUTE RESOLUTION, REAL PROPERTY) CONSPIRACY (see CRIMINAL PRACTICE) CONSTRUCTION CONTRACTS (see ARBITRATION) CONSTRUCTIVE EVICTION (see REAL PROPERTY) CONSUMER FRAUD ACT (see ARBITRATION, CONSUMER PROTECTION) CONSUMER PROTECTION � Consumer Fraud Act � New Car Sales Wilson v. General Motors Corp. et al , A-58 September Term 2006; Supreme Court; per curiam opinion; decided March 20, 2007. On appeal from the Appellate Division. [Sat below: Judges A.A. Rodriguez, Weissbard and Hoens in the Appellate Division.] DDS No. 59-1-6824 [11 pp.] Absent allegations of communications with, or directed to, consumers in connection with the sale or advertisement of vehicles, the asserted violations of the N.J. Antitrust Act do not entitle plaintiffs to relief under the CFA. 187 N.J.L.J. 1174 CONSUMER PROTECTION � Delivery � Household Furniture Monogram Credit Card Bank of Georgia v. Tennesen, A-6267-04T1; Appellate Division; opinion by Messano, J.S.C. (temporarily assigned); decided and approved for publication January 23, 2007. Before Judges Collester, Sabatino and Messano. On appeal from the Law Division, Special Civil Part, Morris County, DC-4744-04. [Sat below: Judge Rand.] DDS No. 09-2-6232 [15 pp.] The delivery of a torn mattress and the failure to offer the options required by N.J.A.C. 13:45A-5.1 violated the Consumer Fraud Act, warranting the award of damages and counsel fees. 187 N.J.L.J. 351 CONTEMPT (see CRIMINAL PRACTICE) CONTRACTS � Force Majeure Facto v. Snuffy Pantagis et al , A-1153-05T1; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication January 29, 2007. Before Judges Skillman, Lisa and Holston. On appeal from the Law Division, Union County, L-2827-04. [Sat below: Judge Anzaldi.] DDS No. 11-2-6295 [11 pp.] While the power failure relieved the banquet hall of the obligation to provide plaintiffs with a wedding reception pursuant to the contract’s force majeure clause, the banquet hall’s inability to perform the contract also relieved plaintiffs of their obligation to pay the contract price. 187 N.J.L.J. 435 CRIMINAL PRACTICE � Adverse Inferences � Witnesses State v. Velasquez , A-3982-01T3; Appellate Division; opinion by Grall, J.A.D.; decided and approved for publication March 21, 2007. Before Judges Skillman, Holston and Grall. On appeal from the Law Division, Atlantic County, Indictment No. 99-08-1429C. DDS No. 14-2-6853 [40 pp.] Defendant was improperly burdened with an adverse inference based on his failure to produce a witness. 187 N.J.L.J. 1179 CRIMINAL PRACTICE � Bail Bonds � Sureties State v. Toscano, A-6664-04T1; Appellate Division; opinion by Grall, J.A.D.; filed January 4, 2007. Before Judges Skillman, Lisa and Grall. On appeal from the Law Division, Camden County, Indictment No. 04-03-01181. DDS No. 14-2-6060 [13 pp.] Where the surety’s efforts approach, but do not meet, the standard of “immediate” and “substantial,” the trial court should consider whether it is appropriate to select a “starting point” between those for minimal and partial remission. 187 N.J.L.J. 109 CRIMINAL PRACTICE � Child Sexual Assault � Jury Instructions � Other-Crimes Evidence State v. Davis , A-2607-04T5; Appellate Division; opinion by Lefelt, P.J.A.D.; decided and approved for publication February 27, 2007. Before Judges Lefelt, Parrillo and Sapp-Peterson. On appeal from the Law Division, Monmouth County, Indictment No. 02-10-2045. [Sat below: Judge Chaiet.] DDS No. 14-2-6626 [32 pp.] When the State presents other-crimes or bad-acts evidence, and defendant asserts an entrapment defense, the better practice is a sequential trial with the same jury. 187 N.J.L.J. 883 CRIMINAL PRACTICE � Civil Practice � Jurors State v. Morales, A-2842-06T5; Appellate Division; per curiam opinion; decided January 26, 2007; approved for publication February 9, 2007. Before Judges Weissbard and Graves. On a motion for leave to appeal from the Law Division, Union County, Indictment No. 00-06-0676. [Sat below: Judge Peim.] DDS No. 14-2-6454 [7 pp.] The trial judge’s proposal to present the jury panel en masse with a questionnaire containing all of the voir dire questions set out in AOC Directive 21-06 directly violates the directive’s requirement that the judge not pose questions before seating the panel in the box. 187 N.J.L.J. 616 CRIMINAL PRACTICE � Commitments � Sexually Violent Predator Act In the Matter of the Civil Commitment of T.J.N., SVP-351-03, A-4857-03T2; Appellate Division; per curiam opinion; decided and approved for publication January 29, 2007. Before Judges Stern, A.A. Rodr�guez and Lyons. On appeal from the Law Division, Essex County, SVP-351-03. DDS No. 14-2-6312 [12 pp.] The State has demonstrated by clear and convincing evidence that appellant has a mental abnormality or personality disorder which makes it highly likely that he cannot control his sexually violent behavior and will reoffend in the reasonably foreseeable future. 187 N.J.L.J. 436 CRIMINAL PRACTICE � Conspiracy � Jury Instructions � Robbery State v. Samuels , A-88 September Term 2005; Supreme Court; opinion by Long, J.; dissent by Albin, J.; decided January 31, 2007. On certification to the Appellate Division. [Sat below: Judges Skillman and Payne in the Appellate Division.] DDS No. 14-1-6343 [38 pp.] The state submitted sufficient evidence from which a jury could conclude beyond a reasonable doubt that defendant conspired to and did commit an armed robbery; however, the convictions for conspiracy and armed robbery must be reversed and retried because of the failure to charge the lesser-included offense of attempted robbery and the improper charge on the elements of conspiracy and accomplice liability. 187 N.J.L.J. 432 CRIMINAL PRACTICE � Contempt � Murder � Restraining Orders State v. Lewis, A-1391-03T4; Appellate Division; opinion by Coburn, P.J.A.D.; decided and approved for publication January 11, 2007. Before Judges Coburn, Axelrad and R.B. Coleman. On appeal from the Law Division, Mercer County, No. 01-04-0404-I. [Sat below: Judge Koenig.] DDS No. 14-2-6124 [19 pp.] Although the trial judge erred when he refused to sever the contempt charge and when he allowed the final domestic-violence restraining order to be admitted into evidence, the errors in relation to both the contempt and the murder convictions were not of such a nature as to have been clearly capable of producing an unjust result. 187 N.J.L.J. 199 CRIMINAL PRACTICE � DNA Database and Databank Act of 1994 State v. O’Hagen , A-70 September Term 2005; Supreme Court; opinion by Wallace, J.; decided January 24, 2007. On certification to the Appellate Division, 380 N.J. Super. 133 (App. Div. 2005). [Sat below: Judges Stern, Coburn and Graves in the Appellate Division; Judge Gannon in the Law Division.] DDS No. 14-1-6261 [35 pp.] The New Jersey DNA Database and Databank Act of 1994 does not violate the search and seizure or due process provisions of the Federal and State Constitutions. 187 N.J.L.J. 345 A.A. v. Attorney General of New Jersey, A-104 September Term 2005; Supreme Court; opinion by Wallace, J.; decided January 24, 2007. On certification to the Appellate Division, 384 N.J. Super. 67 (App. Div. 2006). [Sat below: Judges Grall, Stern and Parker in the Appellate Division.] DDS No. 14-1-6262 [19 pp.] There is no justification to carve out a special exception under the New Jersey DNA Database and Databank Act of 1994 for juveniles whether under 14 or 14 and above. 187 N.J.L.J. 349 CRIMINAL PRACTICE � DWI � Right to Confrontation State v. Renshaw , A-0712-05T1; Appellate Division; opinion by Baxter, J.S.C. (temporarily assigned); decided and approved for publication February 9, 2007. Before Judges Cuff, Winkelstein and Baxter. On appeal from the Law Division, Gloucester County, A-23-05. [Sat below: Judge Tomasello.] DDS No. 14-2-6452 [20 pp.] In a DWI prosecution, a defendant has the right to cross-examine the nurse who drew his blood. 187 N.J.L.J. 614 CRIMINAL PRACTICE � Extradition � Jail Time Credit State v. Hemphill, A-6297-04T4; Appellate Division; opinion by Rodr�guez, P.J.A.D.; decided and approved for publication February 5, 2007. Before Judges Stern, A.A. Rodr�guez and Collester. On appeal from the Law Division, Ocean County, 93-05-0373. DDS No. 14-2-6394 [8 pp.] Defendant is entitled to receive credit for time spent in custody in the United Kingdom pending extradition. 187 N.J.L.J. 510 CRIMINAL PRACTICE � Fire Investigations � Search and Seizure State v. Amodio, A-0264-04T4; Appellate Division; opinion by Yannotti, J.A.D.; decided and approved for publication February 5, 2007. Before Judges Wefing, C.S. Fisher and Yannotti. On appeal from the Law Division, Camden County, Ind. No. 3700-12-01. [Sat below: Judge Brown.] DDS No. 14-2-6396 [27 pp.] The trial judge correctly found that the fire investigators were permitted to remain on the premises for a reasonable period of time to conduct their investigation into the cause and origin of the fire, and the objects that came into plain view as a result of such actions could be preserved without a warrant. 187 N.J.L.J. 512 CRIMINAL PRACTICE � Inmate Disciplinary Hearings Ratti v. Department of Corrections , A-2609-05T2; Appellate Division; opinion by Kestin, P.J.A.D.; decided and approved for publication March 6, 2007. Before Judges Kestin, Weissbard and Lihotz. On appeal from the Department of Corrections. DDS No. 13-2-6697 [5 pp.] Fundamental fairness requires that a single fact finder must hear all the evidence and arrive at conclusions regarding the facts in an inmate disciplinary hearing, especially where credibility is an issue. 187 N.J.L.J. 1012 CRIMINAL PRACTICE � Inmates � Medical Records J.D.A. v. New Jersey Department of Corrections et al, A-22 September Term 2005; Supreme Court; opinion by Long, J.; decided February 27, 2007. On certification to the Appellate Division. DDS No. 13-1-6619 [11 pp.] The Department of Corrections has the ultimate responsibility for inmate medical care and accurate medical recordkeeping, and must expeditiously adopt regulations codifying its obligations. 187 N.J.L.J. 882 CRIMINAL PRACTICE � Insurance Fraud State v. Fleischman , A-4 September Term 2006; Supreme Court; opinion by LaVecchia, J.; dissent by Long, J.; decided March 19, 2007. On appeal from the Appellate Division, 383 N.J. Super. 396 (App. Div. 2006). [Sat below: Judges Kestin, Lefelt and Hoens in the Appellate Division; Judge DeVesa in the Law Division.] DDS No. 14-1-6818 [30 pp.] Discrete facts within a single narrative advanced in support of a fraudulent claim are not individual fraudulent “acts” under N.J.S.A. 2C:21-4.6 for purposes of elevating insurance fraud to a second-degree offense. 187 N.J.L.J. 1173 CRIMINAL PRACTICE � Internet Service Providers � Search and Seizure State v. Reid, A-3424-05T5; Appellate Division; opinion by Weissbard, J.A.D.; decided and approved for publication January 22, 2007. Before Judges Kestin, Weissbard and Graves. On appeal from the Law Division, Cape May County, Ind. No. 05-02-0121. [Sat below: Judge Alvarez.] DDS No. 14-2-6229 [18 pp.] Internet subscribers have an expectation of privacy under the State Constitution with respect to identifying information on file with their Internet service providers. 187 N.J.L.J. 352 CRIMINAL PRACTICE � Jury Instructions � Other-Crimes Evidence � Prosecutors � Summations State v. Blakney, A-6162-01T4; Appellate Division; per curiam opinion; dissent by Weissbard, J.A.D.; decided January 24, 2006; approved for publication December 20, 2006. Before Judges Conley, Weissbard and Sapp-Peterson. On appeal from the Law Division, Hudson County, Indictment No. 99-11-1806. DDS No. 14-2-2680 [73 pp.] The trial court’s instructions regarding the limited purpose for which prior abuse evidence could be considered were not defective, and the assistant prosecutor’s remarks in summation, although emotionally charged, did not deny defendant, convicted of murdering her infant, a fair trial. 187 N.J.L.J. 113 CRIMINAL PRACTICE � Jury Instructions � Witnesses State v. King , A-5172-01T1; Appellate Division; opinion by Stern, P.J.A.D.; decided and approved for publication February 6, 2007. Before Judges Stern, A.A. Rodr�guez and Sabatino. On appeal from the Law Division, Essex County, Indictment No. 2001-4-1778 and 1779. [Sat below: Judge Vena.] DDS No. 14-2-6406 [29 pp.] Where the identification testimony was not strong, and the jury charge should have been more detailed regarding suggestiveness, the fact that the critical defense witness testified in restraints without a specific finding of necessity was not harmless error. 187 N.J.L.J. 514 CRIMINAL PRACTICE � Plea Bargains State v. Rosario , A-1039-04T4; Appellate Division; opinion by Stern, P.J.A.D.; decided and approved for publication February 27, 2007. Before Judge Stern, Collester and Messano. On appeal from the Law Division, Bergen County, Indictment No. 98-03-0607. [Sat below: Judge Conte.] DDS No. 14-2-6625 [24 pp.] Where a plea in New York was conditioned on a plea being negotiated in New Jersey, and the New Jersey offer was made after the plea had already been entered in New York, the New Jersey offer must be enforced. 187 N.J.L.J. 886 CRIMINAL PRACTICE � Pretrial Intervention State v. Liviaz, etc., A-5135-05T1, A-5136-05T1; Appellate Division; opinion by Coburn, P.J.A.D.; decided and approved for publication January 10, 2007. Before Judges Coburn, Axelrad and Gilroy. On appeal from the Law Division, Burlington County, No. 2002-05-0620-I and No. 2005-09-1232-I. [Sat below: Judge LeBon.] DDS No. 14-2-6105 [11 pp.] A defendant may not be denied admission to PTI solely because he is an illegal alien, although that can be a relevant factor. 187 N.J.L.J. 198 State v. Watkins, A-3853-05T4; Appellate Division; opinion by Weissbard, J.A.D.; decided and approved for publication February 5, 2007. Before Judges Kestin, Weissbard and Payne. On appeal from the Law Division, Mercer County, Ind. No. 04-01-0008. [Sat below: Judge Sypek.] DDS No. 14-2-6395 [16 pp.] Defendant’s receipt of nine unemployment benefit checks over four months to which he was not entitled is not a “continuing criminal enterprise” under Guideline 3(i)(2) of Rule 3:28 governing eligibility for PTI. 187 N.J.L.J. 512 CRIMINAL PRACTICE � Pro Se Representation State v. DuBois , A-102 September Term 2005; Supreme Court; opinion by Wallace, J.; decided March 8, 2007. On certification to the Appellate Division. [Sat below: Judges Weissbard, Winkelstein and Sabatino in the Appellate Division.] DDS No. 14-1-6735 [30 pp.] Under the facts here, defendant was sufficiently informed to, and did, knowingly and intelligently waive his right to counsel. 187 N.J.L.J. 1009 CRIMINAL PRACTICE � Search and Seizure � Self-Incrimination State v. Dispoto, A-103 September Term 2005; Supreme Court; opinion by LaVecchia, J.; decided January 18, 2007. On appeal from the Appellate Division, 383 N.J. Super. 205 (App. Div. 2006). [Sat below: Judges Lintner, Parrillo and Gilroy in the Appellate Division; Judge Harper in the Law Division.] DDS No. 14-1-6193 [24 pp.] There is no per se rule that Miranda warnings must be re-administered to a suspect at the time of arrest even though he recently received such warnings during precustodial interactions with police. 187 N.J.L.J. 269 CRIMINAL PRACTICE � Shoplifting State v. Goodmann , A-1447-05T1; Appellate Division; opinion by Payne, J.A.D.; decided and approved for publication February 2, 2007. Before Judges Kestin, Payne and Graves. On appeal from the Law Division, Bergen County, BMA-004-17-05. DDS No. 14-2-6379 [13 pp.] Defendant’s billing dispute with Walgreens over the cost of its film development services should not have been resolved by resort to the shoplifting provisions of the criminal code. 187 N.J.L.J. 510 CUSTODY (see FAMILY LAW) DEFAULT LIABILITY (see INSURANCE) DELIVERY (see CONSUMER PROTECTION) DENSITY VARIANCES (see LAND USE and PLANNING) DEVELOPMENTAL DISABILITIES (see ADMINISTRATIVE LAW) DISCOVERY (see CIVIL PRACTICE) DISCRIMINATION (see CIVIL PRACTICE, EMPLOYMENT) DISHONORED CHECKS (see BANKING) DISMISSALS (see CIVIL PRACTICE) DISTRIBUTIONS (see TRUSTS and ESTATES) DNA DATABASE AND DATABANK ACT OF 1994 (see CRIMINAL PRACTICE) DWI (see CRIMINAL PRACTICE) EMOTIONAL DISTRESS (see INSURANCE) EMPLOYMENT (see also CIVIL PRACTICE) EMPLOYMENT � Civil Practice � Discrimination Cutler v. Dorn et al , A-5512-02T1; Appellate Division; opinion by Lisa, J.A.D.; decided and approved for publication February 2, 2007. Before Skillman, Lisa and Grall. On appeal from the Law Division, Camden County, L-5088-99. [Sat below: Judge Kassel.] DDS No. 25-2-6368 [28 pp.] Given the totality of the circumstances, the comments and pranks made by other policemen in plaintiff’s presence were sporadic and not sufficiently severe or pervasive to create a hostile work environment under the LAD, and the borough’s motions to dismiss and for a judgment nov should have been granted. 187 N.J.L.J. 513 EMPLOYMENT � Discrimination Carmona et al v. Resorts International Hotel Inc. , A-83 September Term 2005; Supreme Court; opinion by Rivera-Soto, J.; dissent by Wallace, J.; decided February 21, 2007. On certification to the Appellate Division. [Sat below: Judges Kestin, Lefelt and Hoens in the Appellate Division; Judge Higbee in the Law Division.] DDS No. 25-1-6552 [38 pp.] An employee’s complaint that allegedly triggers a retaliation claim must be made in good faith and on a reasonable basis, and an investigative report prepared by an employer, which the employer claims provided an independent basis for the employee’s discharge, is admissible. 187 N.J.L.J. 778 ENERGY AND NATURAL RESOURCES � Renewable Energy Certificates In the Matter of the Ownership of Renewable Energy Certificates, A-5183-04T5, A-5189-04T5 and A-5191-04T5; Appellate Division; opinion by Coburn, P.J.A.D.; decided and approved for publication January 10, 2007. Before Judges Coburn, Axelrad and R.B. Coleman. On appeal from the Board of Public Utilities, Agency Docket No. EO04080879. DDS No. 37-2-6104 [15 pp.] The BPU’s decision to assign ownership of renewable energy certificates for long-term contracts for the sale and purchase of renewable energy that were made before the BPU created the certificate program to utilities, rather than to the renewable energy producers, is affirmed. 187 N.J.L.J. 199 ENVIRONMENTAL LAW � Administrative Hearings � Solid Waste Management Act Gloucester County Improvement Authority v. Dept. of Environmental Protection , A-4284-04T1; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication March 21, 2007. Before Judges Skillman, Lisa and Grall. On appeal from the New Jersey Department of Environmental Protection. DDS No. 17-2-6843 [11 pp.] A notice of violation of the SWMA which orders immediate cessation of the operation of a solid-waste management facility is an order of abatement entitling the recipient to an administrative hearing. 187 N.J.L.J. 1177 ENVIRONMENTAL LAW � Freshwater Protection Act Doyal v. New Jersey Dep’t of Environmental Protection, A-4839-04T1; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication January 24, 2007. Before Judges Skillman, Holston and Grall. On appeal from Department of Environmental Protection, ESA 00350-2004S. DDS No. 17-2-6251 [12 pp.] N.J.S.A. 13:9B-23(b) prohibits issuance of a general permit for a regulated activity on any wetlands that discharge into a surface water tributary system, regardless of whether it is nontidal or tidal. 187 N.J.L.J. 352 EVIDENCE � Experts Espinal et al v. Arias et al , A-2445-05T1; Appellate Division; opinion by Winkelstein, J.A.D.; decided and approved for publication March 8, 2007. Before Judges Cuff, Winkelstein and Fuentes. On appeal from the Law Division, Middlesex County, MID-L-4930-03. [Sat below: Judge Pullen.] DDS No. 23-2-6726 [21 pp.] A party is entitled to present to the jury with the expert’s qualifications even if the opposing party stipulates to those qualifications. 187 N.J.L.J. 1082 EXPERTS (see EVIDENCE, REAL PROPERTY) EXTRADITION (see CRIMINAL PRACTICE) FAIR DEBT COLLECTION PRACTICES ACT (see LEGAL PROFESSION) FAMILY LAW � Accountants � Attorneys’ Fees Johnson v. Johnson, etc. , A-1172-05T1; Appellate Division; opinion by Cuff, P.J.A.D.; decided and approved for publication February 5, 2007. Before Judges Cuff, Fuentes and Baxter. On appeal from the Chancery Division, Family Part, Passaic County, FM-16-410-97. [Sat below: Judge Diamond.] DDS No. 20-2-6383 [10 pp.] Defendant was entitled to a hearing on the reasonableness of the fees sought by the court-appointed accountant in his divorce, and the judge also erred in granting attorney counsel fees to the accountant since this claim was not a family action. 187 N.J.L.J. 514 FAMILY LAW � Adult Adoptions In the Matter of P.B. and S.B. for the Adoption of L.C., an Adult , FA-06-45-06A; Law Division, Family Part, Cumberland County; opinion by Mendez, P.J.F.P.; decided September 8, 2006; approved for publication February 8, 2007. DDS No. 20-3-6568 [11 pp.] An adult adoption should not be granted when the statutorily required minimum age difference of 10 years between the adopter and adoptee is not satisfied. 187 N.J.L.J. 780 FAMILY LAW � Child Support � College Expenses � Uniform Interstate Family Support Act Marshak v. Weser, A-0586-05T1; Appellate Division; opinion by Reisner, J.A.D.; decided and approved for publication February 8, 2007. Before Judges Lintner, S.L. Reisner and Seltzer. On appeal from the Chancery Division, Family Part, Monmouth County, FM-13-134-02B. [Sat below: Judge Reisner.] DDS No. 20-2-6426 [11 pp.] UIFSA precludes New Jersey from modifying a Pennsylvania support order to require a father to pay his 18-year-old son’s college expenses when Pennsylvania does not require such payments. 187 N.J.L.J. 515 FAMILY LAW � Child Support � Foreign Support Orders Campbell v. Campbell, A-3989-05T5; Appellate Division; opinion by Rodr�guez, P.J.A.D.; decided and approved for publication March 15, 2007. Before Judges Stern, A.A. Rodr�guez and Collester. On appeal from the Chancery Division, Family Part, Burlington County, FD-03-1612-04-X. [Sat below: Judge Morley.] DDS No. 20-2-6788 [10 pp.] Where defendant contested the Australian child support at the registration hearing pursuant to the Uniform Interstate Family Support Act, the trial judge correctly denied his motion to vacate the order. 187 N.J.L.J. 1082 FAMILY LAW � Child Support � Pre-emption Giordano v. Giordano, A-3210-05T1; Appellate Division; opinion by Fisher, J.A.D.; decided and approved for publication January 9, 2007. Before Judges Wefing, C.S. Fisher and Messano. On appeal from the Chancery Division, Family Part, Monmouth County, FM-13-9361-88B. [Sat below: Judge Kilgallen.] DDS No. 20-2-6091 [14 pp.] The Child Support Recovery Act, 18 U.S.C.A. � 228, once triggered, does not pre-empt state law or prevent state courts from imposing child-support orders more onerous that those imposed by federal courts. 187 N.J.L.J. 193 FAMILY LAW � Custody Hand v. Hand , A-4748-05T1, Appellate Division; opinion by Graves, J.A.D.; decided and approved for publication March 7, 2007. Before Judges Kestin, Graves and Lihotz. On appeal from the Chancery Division, Family Part, Atlantic County, FM-01-813-01B. [Sat below: Judge Baker.] DDS No. 20-2-6713 [16 pp.] The trial court correctly concluded there was no need for a plenary hearing on whether to change custody because plaintiff failed to establish a prima facie case that circumstances subsequent to the divorce judgment were adversely affecting the welfare of the children. 187 N.J.L.J. 1012 FAMILY LAW � Grandparent Visitation Statute Rente v. Rente, A-2887-05T5; Appellate Division; opinion by Axelrad, J.T.C. (temporarily assigned); decided and approved for publication February 15, 2007. Before Judges Coburn, Axelrad and Gilroy. On appeal from the Chancery Division, Family Part, Passaic County, FD-16-2072-05. [Sat below: Judge Mizzone.] DDS No. 20-2-6503 [12 pp.] Where the trial judge acknowledged that there was no proof that any harm would come to the child by not visiting with his grandparents, the judge erred in ordering that under the Grandparent Visitation Statute, they be given weekly supervised visitations. 187 N.J.L.J. 609 FAMILY LAW � In Camera Proceedings Uherek v. Sathe , A-6293-05T2; Appellate Division; opinion by Fisher, J.A.D.; decided and approved for publication March 15, 2007. Before Judges Wefing, C.S. Fisher and Yannotti. On appeal from the Chancery Division, Family Part, Middlesex County, FM-12-1385-00D. [Sat below: Judge Currier.] DDS No. 20-2-6789 [7 pp.] Absent a pending custody proceeding, there is no existing basis for a turnover, even to a parent, of the child’s private communications. 187 N.J.L.J. 1176 FAMILY LAW � Termination of Parental Rights DYFS v. F.H. and A.H., A-3477-04T4 and A-3846-04T4; Appellate Division; opinion by Fuentes, J.A.D.; decided and approved for publication January 23, 2007. Before Judges Cuff, Fuentes and Baxter. On appeal from the Chancery Division, Family Part, Bergen County, FG-02-81-04. DDS No. 28-2-6237 [69 pp.] DYFS met its burden of proof that the parents were unwilling or unable to provide a safe and secure environment for the child. 187 N.J.L.J. 350 DYFS v. M.M., A-115/116 September Term 2005; Supreme Court; opinion by Zazzali, J.; dissent by Wallace, J.; decided February 8, 2007. On certification to the Appellate Division, 382 N.J. Super. 264 (App. Div. 2006). [Sat below: Judges Kestin, Hoens and Seltzer in the Appellate Division.] DDS No. 28-1-6437 [54 pp.] The trial court correctly evaluated the father’s parental rights in light of his cohabitation with the mother since her presence in the home was pertinent to determining the father’s fitness to parent. 187 N.J.L.J. 505 FEDERAL HOUSING (see REAL PROPERTY) FIRE INVESTIGATIONS (see CRIMINAL PRACTICE) FIREFIGHTERS’ RULE (see TORTS) FORCE MAJEURE (see CONTRACTS) FORECLOSURES (see TAXATION) FOREIGN SUPPORT ORDERS (see FAMILY LAW) FRESHWATER PROTECTION ACT (see ENVIRONMENTAL LAW) GOVERNMENT � Attorneys’ Fees � Open Public Records Act New Jersey Builders Association v. New Jersey Council on Affordable Housing , A-4531-04T5; Appellate Division; opinion by Grall, J.A.D.; decided and approved for publication January 24, 2007. Before Judges Stern, Grall and King. On appeal from the Law Division, Mercer County, L-2291-04. [Sat below: Judge Feinberg.] DDS No. 52-2-6255 [24 pp.] When a request for records fails to specifically identify the documents sought, OPRA’s deadlines do not apply and plaintiff-requestor is not entitled to counsel fees although the documents were produced beyond seven business days. 187 N.J.L.J. 354 GOVERNMENT � Municipal Courts In the Matter of the Municipal Court of East Newark , MER-L-2172-06; Law Division, Mercer County; opinion by Feinberg, A.J.S.C.; decided October 27, 2006; approved for publication February 5, 2007. DDS No. 30-3-6435 [13 pp.] Municipalities sharing municipal court services must also share a municipal court judge. 187 N.J.L.J. 617 GOVERNMENT � Open Meetings � Videotapes Tarus v. Borough of Pine Hill et al , A-93 September Term 2005; Supreme Court; opinion by Zazzali, C.J.; decided March 7, 2007. On certification to the Appellate Division, 381 N.J. Super. 412 (App. Div. 2005). [Sat below: Judges Parrillo, Holston and Gilroy in the Appellate Division; Judge Little in the Law Division] DDS No. 21-1-6715 [38 pp.] Subject to reasonable restrictions, members of the public have a common-law right to videotape municipal meetings in New Jersey. 187 N.J.L.J. 1005 GOVERNMENT � Public Employees � Retirement McKenzie v. Board of Trustees of the Public Employees’ Retirement System, A-1376-05T5; Appellate Division; opinion by Stern, P.J.A.D.; decided and approved for publication December 26, 2006. Before Judges Stern, A.A. Rodr�guez and Collester. On appeal from the board of trustees of the Public Employees’ Retirement System, No. 2-10-204586. DDS No. 33-2-5991 [7 pp.] An employee must be actively employed in government service at the time of retirement in order to obtain veterans’ benefits. 187 N.J.L.J. 46 GOVERNMENT � Public Employees’ Retirement System Smith v. State of New Jersey, Department of Treasury, Division of Pensions and Benefits , A-6002-04T2; Appellate Division; opinion by Fisher, J.A.D.; decided and approved for publication January 29, 2007. Before Judges C.S. Fisher, Yannotti and Messano. On appeal from the Board of Trustees of the New Jersey Public Employees’ Retirement System, PERS #1221955. DDS No. 33-2-6304 [11 pp.] A public employee is not eligible for accidental disability pension benefits, pursuant to N.J.S.A. 43:15A-43, when the traumatic event that caused the disability occurred before the employee became a member of the Public Employees’ Retirement System (PERS). 187 N.J.L.J. 435 GRANDPARENT VISITATION STATUTE (see FAMILY LAW) HEALTH LAW � Certificates of Need � Hospitals In re Application of Virtua-West Jersey Hospital Voorhees , A-1455-04T5; Appellate Division; opinion by Kestin, P.J.A.D.; decided and approved for publication February 8, 2007. Before Judges Kestin, Payne and Lihotz. On appeal from the Department of Health and Senior Services, CN# FR 030513-04-01. DDS No. 22-2-6429 [16 pp.] The certificate of need application process does not require the Commissioner for Public Health Services of the Department of Health and Senior Services to call for an application of a certain type before he may review a proposal. 187 N.J.L.J. 617 HEALTH LAW � Civil Commitments � Mental Health In the Matter of the Commitment of J.R. , A-4572-05T5; Appellate Division; opinion by Holston, J.A.D.; decided January 3, 2007; approved for publication February 22, 2007. Before Judges Skillman and Holston. On appeal from the Law Division, Ocean County, OCCC-127-06. DDS No. 22-2-6041App [14 pp.] The State has failed to establish by clear and convincing evidence that appellant presented a danger to himself or others or property as required by N.J.S.A. 30:4-27.15a, thereby requiring a reversal of the order of commitment. 187 N.J.L.J. 779 HEALTH LAW � Medicaid � Property Settlement Agreements � Transfer Penalties W.T. v. Division of Medical Assistance and Health Services , A-0089-05T5; Appellate Division; opinion by Collester, J.A.D.; decided and approved for publication March 1, 2007. Before Judges Coburn, Collester and S.L. Reisner. On appeal from a final agency decision of the Division of Medical Assistance and Health Services, HMA-877104. DDS No. 45-2-6660 [28 pp.] The imposition of a transfer penalty delaying the applicant’s eligibility for Medicaid because of an unequal PSA in favor of his wife in their divorce action is reversed as without regulatory authorization. 187 N.J.L.J. 1011 HEALTH LAW � Vaccines Rivard v. American Home Products Inc., et al, A-2478-05T3; Appellate Division; opinion by LeFelt, P.J.A.D.; decided and approved for publication March 8, 2007. Before Judges Lefelt, Parrillo and Sapp-Peterson. On appeal from the Law Division, Bergen County, L-08470-01. DDS No. 32-2-6729 [30 pp.] Where, in the manufacture of the vaccine, defendants began with a contaminant already in the strain and attempted to neutralize it, the contaminant was not something “intentionally added” to the vaccine, and plaintiffs’ claim is subject to the National Childhood Vaccine Injury Act. 187 N.J.L.J. 1013 HOLDERS IN DUE COURSE (see BANKING) HOSPITALS (see HEALTH LAW) HOSTILE ENVIRONMENT (see SCHOOLS and EDUCATION) HOUSEHOLD FURNITURE (see CONSUMER PROTECTION) IMMUNITY (see INSURANCE) IN CAMERA PROCEEDINGS (see FAMILY LAW) INMATE DISCIPLINARY HEARINGS (see CRIMINAL PRACTICE) INMATES (see CRIMINAL PRACTICE) INSURANCE � “At-fault” Accidents � Automobiles Reilly v. AAA Mid-Atlantic Ins. Co. of New Jersey , A-5692-04T3; Appellate Division; opinion by Reisner, J.A.D.; decided and approved for publication February 16, 2007. Before Judges S.L. Reisner, Seltzer and C.L. Miniman. On appeal from a final decision of the Department of Banking and Insurance, EP04-08. DDS No. 23-2-6523 [25 pp.] The Commissioner of Banking and Insurance’s construction of “at-fault accident” in N.J.A.C. 11:3-34.3 to include a one-car weather-related accident where the driver was not negligent is reasonable. 187 N.J.L.J. 778 INSURANCE � Autism � Medical Insurance � Public Employees Micheletti v. State Health Benefits Commission, A-4418-05T2; Appellate Division; opinion by Collester, J.A.D.; decided and approved for publication January 17, 2007. Before Judges Stern, Collester and Sabatino. On appeal from a final agency decision of the State Health Benefits Commission. DDS No. 22-2-6175 [23 pp.] Coverage for medically necessary treatment may not be declined to an autistic child as a dependent under the State Health Benefits Program. 187 N.J.L.J. 276 INSURANCE � Auto Insurance � Immunity Pizzullo v. New Jersey Manufacturers Insurance Company , A-1395-05T2; Appellate Division; opinion by Fuentes, J.A.D.; decided and approved for publication March 8, 2007. Before Judges Cuff, Winkelstein and Fuentes. On appeal from the Law Division, Mercer County, L-2349-01. [Sat below: Judge Jacobson.] DDS No. 23-2-6725 [22 pp.] Equitable considerations cannot trump the immunity provision of N.J.S.A. 17:28-1.9 given to insurance carriers in actions brought by the insured based on the election of auto insurance coverage through erroneous information given by an agent. 187 N.J.L.J. 1083 INSURANCE � Automobile Insurance Cost Reduction Act Davidson v. Slater, A-84 September Term 2005; Supreme Court; opinion by LaVecchia, J.; decided January 30, 2007. On certification to the Appellate Division, 381 N.J. Super. 22 (App. Div. 2005). [Sat below: Judges Conley, Weissbard and Winkelstein in the Appellate Division; Judge LeBon in the Law Division.] DDS No. 23-1-6323 [38 pp.] Plaintiff’s nonaggravation cause of action should not have been dismissed based on the failure to provide a comparative-medical analysis. 187 N.J.L.J. 432 INSURANCE � Automobile Insurance Cost Reduction Act � Default Liability New Jersey Manufacturers Ins. Co. v. Varjabedian , A-3372-05T1; Appellate Division; opinion by Lintner, J.A.D.; decided and approved for publication March 22, 2007. Before Judges Lintner, S.L. Reisner and Seltzer. On appeal from the Law Division, Camden County, L-1535-04. [Sat below: Judge Freeman.] DDS No. 23-2-6859 [12 pp.] Where the tortfeasor’s policy is subject to retroactive revocation after an otherwise covered accident, the default personal injury liability coverage responsibility of an auto insurer is equal to the $15,000/$30,000 limits mandated by AICRA. 187 N.J.L.J. 1180 INSURANCE � Automobile Insurance Cost Reduction Act � Emotional Distress � Limitation-on-Lawsuit Threshold Jablonowska v. Suther, A-0462-05T5; Appellate Division; opinion by Yannotti, J.A.D.; decided and approved for publication February 13, 2007. Before Judges Parker, C.S. Fisher and Yannotti. On appeal from the Law Division, Essex County, ESX-L-9718-02. DDS No. 05-2-6478 [18 pp.] Plaintiff’s Portee emotional distress claim arising out of an auto accident is subject to the limitation-on-lawsuit threshold in N.J.S.A. 39:6A-8a and was properly dismissed for failure to meet that threshold. 187 N.J.L.J. 616 INSURANCE � Automobile Insurance Cost Reduction Act � Limitation-on-Lawsuit Threshold � Scars Soto v. Scaringelli , A-17 September Term 2006; Supreme Court; opinion by Rivera-Soto, J.; decided March 21, 2007. On certification to the Appellate Division, 384 N.J. Super. 431 (App. Div. 2006). [Sat below: Judges Conley, Weissbard and Winkelstein in the Appellate Division; Judge Smithson in the Law Division.] DDS No. 23-1-6847 [27 pp.] No reasonable fact finder could objectively conclude that plaintiff’s 7 cm scar or her surgically implanted plate and screw constituted a scar/disfigurement sufficiently “significant” to vault AICRA’s limitation-on-lawsuit threshold. 187 N.J.L.J. 1169 INSURANCE � Burden of Proof � Uninsured-Motorist Coverage New Jersey Citizens United Reciprocal Exchange v. American International Ins. Co. of New Jersey, A-2099-05T5; Appellate Division; opinion by Gilroy, J.A.D.; decided and approved for publication December 27, 2006. Before Judges Coburn, R.B. Coleman and Gilroy. On appeal from the Law Division, Union County, L-2553-04. [Sat below: Judge Dupuis.] DDS No. 23-2-5997 [9 pp.] When a claimant is someone other than the named insured, the claimant has the burden of persuasion to establish that an insurer did not provide reasonable notice to its insured of a change in UIM coverage. 187 N.J.L.J. 45 INSURANCE � Buses � Limitations of Actions � PIP Coverage Johnson v. Republic Western Ins. Co. , A-3968-05T5; Appellate Division; opinion by Axelrad, J.T.C. (temporarily assigned); decided and approved for publication March 16, 2007. Before Judges Coburn, Axelrad and R.B. Coleman. On appeal from the Law Division, Monmouth County, L-4815-05. [Sat below: Judge Perri.] DDS No. 23-2-6801 [11 pp.] The six-year contract statute of limitations applies to a claim for medical expense benefits under N.J.S.A. 17:28-1.6 by a passenger injured on a motor bus. 187 N.J.L.J. 1175 INSURANCE � Legal Malpractice � Summary Judgment Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A. et al, A-91 September Term 2005; Supreme Court; opinion by Wallace, J.; decided February 28, 2007. On certification to the Appellate Division. [Sat below: Judges Kestin, Lefelt and Hoens in the Appellate Division.] DDS No. 23-1-6640 [26 pp.] Although the application question regarding the law firm’s knowledge is subjective, where no reasonable fact finder could conclude that the firm did not know there had been a breach of professional duty when it applied for insurance, summary judgment denying coverage is appropriate. 187 N.J.L.J. 877 INSURANCE � Medical Insurance � Pervasive Developmental Disorder � State Health Benefits Commission Markiewicz v. State Health Benefits Commission, A-0507-05T5; Appellate Division; opinion by Payne, J.A.D.; decided and approved for publication January 17, 2007. Before Judges Kestin, Weissbard and Payne. On appeal from a Final Agency Decision of the State Health Benefits Commission, TYP 6355-04S. DDS No. 22-2-6174 [19 pp.] The contract exclusion under which the SHBC denied occupational, speech and physical therapy for a covered person suffering from PDD violates the New Jersey Mental Health Parity Act. 187 N.J.L.J. 275 INSURANCE � Personal Injury Protection Benefits Britten v. Liberty Mutual Ins. Co., A-2440-05T3; Appellate Division; opinion by Sapp-Peterson, J.S.C. (temporarily assigned); decided and approved for publication January 12, 2007. Before Judges Lefelt, Parrillo and Sapp-Peterson. On appeal from the Law Division, Ocean County, L-1418-05. [Sat below: Judge Ford.] DDS No. 23-2-6135 [10 pp.] Plaintiff, who recovered PIP benefits under her own auto policy, may not also recover PIP benefits under her mother’s policy, even though she was a resident of her mother’s household. 187 N.J.L.J. 273 INSURANCE � PIP � Resident Children Rutgers Casualty Ins. Co. v. LaCroix et al , A-4006-05T2; Appellate Division; opinion by Holston, J.A.D.; decided and approved for publication February 5, 2007. Before Judges Lisa, Holston and Grall. On appeal from the Law Division, Camden County, L-2776-04. [Sat below: Judge Little.] DDS No. 23-2-6385 [17 pp.] The resident-child of the insured, injured while driving her father’s car with permission and unaware of his failure to include her on his policy application, is an innocent party entitled to recover the statutorily mandated minimum PIP benefits. 187 N.J.L.J. 515 INSURANCE FRAUD (see CRIMINAL PRACTICE) INTERNET SERVICE PROVIDERS (see CRIMINAL PRACTICE) JAIL TIME CREDIT (see CRIMINAL PRACTICE) JURISDICTION (see CIVIL PRACTICE) JURORS (see CRIMINAL PRACTICE) JURY INSTRUCTIONS (see CRIMINAL PRACTICE, TORTS) LAND USE and PLANNING � Density Variances Grubbs v. Slothower et al , A-4196-05T2; Appellate Division; opinion by Messano, J.S.C. (temporarily assigned); decided and approved for publication January 8, 2007. Before Judges Stern, Collester and Messano. On appeal from the Law Division, Union County, L-2427-05. [Sat below: Judge Pisansky.] DDS No. 26-2-6080 [20 pp.] A zoning board of adjustment should apply a more relaxed standard of review for density variances than for use variances. 187 N.J.L.J. 197 LAND USE and PLANNING � Perogative Writs Gregory et al v. Borough of Avalon et al , A-0748-05T3; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication March 16, 2007. Before Judges Skillman, Holston and Grall. On appeal from the Law Division, Cape May County, L-415-04. [Sat below: Judge Visalli.] DDS No. 26-2-6802 [16 pp.] Here, where the applicant relied on parking and dune agreements in its variance and expansion application, the 45-day period for challenging the resolutions should be extended in the interest of justice in order for a proper weighing of the public and private interests implicated. 187 N.J.L.J. 1178 LAND USE and PLANNING � Redevelopment Plans Weeden et al v. City Council of the City of Trenton et al , A-2200-05T5; Appellate Division; opinion by Reisner, J.A.D.; decided and approved for publication March 19, 2007. Before Judges S.L. Reisner, Seltzer and C.L. Miniman. On appeal from the Law Division, Mercer County, L-2891-04PW. [Sat below: Judge Feinberg.] DDS No. 26-2-6816 [24 pp.] The local zoning board of adjustment had jurisdiction to grant a variance from a redevelopment plan that prohibited construction of drive-in restaurants. 187 N.J.L.J. 1177 LANDLORD/TENANT (see LEGAL PROFESSION, REAL PROPERTY) LAW AGAINST DISCRIMINATION (see SCHOOLS and EDUCATION) LEGAL PROFESSION � Fair Debt Collection Practices Act � Landlord and Tenant � Summary Dispossess Actions Hodges v. Sasil Corp. et al , A-113 September Term 2005; Supreme Court; opinion by Zazzali, J.; partial dissent by LaVecchia, J.; decided January 31, 2007. On appeal from the Appellate Division, 383 N.J. Super. 596 (App. Div. 2006). [Sat below: Judges Stern, Parker, and Lihotz in the Appellate Division; Judge Claude Coleman in the Law Division.] DDS No. 27-1-6337 [38 pp.] A law firm that regularly files summary dispossess actions for nonpayment of rent is a “debt collector” under the FDCPA. 187 N.J.L.J. 425 LEGAL MALPRACTICE (see INSURANCE, TORTS) LIMITATION-ON-LAWSUIT THRESHOLD (see INSURANCE) LIMITATIONS OF ACTIONS (see BANKING, INSURANCE) MEDICAID (see HEALTH LAW, SOCIAL SERVICES LAW) MEDICAL EXAMINATIONS (see CIVIL PRACTICE) MEDICAL EXPERTS (see TORTS) MEDICAL INSURANCE (see INSURANCE) MEDICAL MALPRACTICE (see TORTS) MEDICAL RECORDS (see CRIMINAL PRACTICE) MEDICAL SCREENING (see PRODUCT LIABILITY) MENTAL HEALTH (see HEALTH LAW) MORTGAGEES (see REAL PROPERTY) MUNICIPAL COURTS (see GOVERNMENT) MURDER (see CRIMINAL PRACTICE) NEGOTIABLE INSTRUMENTS (see BANKING) NEW CAR SALES (see CONSUMER PROTECTION) NEW JERSEY ARBITRATION ACT (see ARBITRATION) NOTICE (see REAL PROPERTY) OPEN MEETINGS (see GOVERNMENT) OPEN PUBLIC RECORDS ACT (see GOVERNMENT) OTHER-CRIMES EVIDENCE (see CRIMINAL PRACTICE) PEROGATIVE WRITS (see LAND USE and PLANNING) PERSONAL INJURY PROTECTION BENEFITS (see INSURANCE) PERVASIVE DEVELOPMENTAL DISORDER (see INSURANCE) PIP (see INSURANCE) PLEA BARGAINS (see CRIMINAL PRACTICE) PRE-EMPTION (see FAMILY LAW) PRETRIAL INTERVENTION (see CRIMINAL PRACTICE) PRO SE REPRESENTATION (see CRIMINAL PRACTICE) PRODUCT LIABILITY � Medical Screening � Vioxx Sinclair v. Merck & Co. Inc. , A-5661-04T5; Appellate Division; opinion by Payne, J.A.D.; decided and approved for publication January 16, 2007. Before Judges Weissbard, Payne and Graves. On appeal from the Law Division, Atlantic County, L-3771-04. [Sat below: Judge Higbee.] DDS No. 32-2-6160 [26 pp.] The dismissal on the pleadings of plaintiff-Vioxx takers’ complaint seeking a medical monitoring program without analysis of scientific and other evidence relevant to their claims was premature. 187 N.J.L.J. 274 PROPERTY SETTLEMENT AGREEMENTS (see HEALTH LAW) PROSECUTORS (see CRIMINAL PRACTICE) PUBLIC EMPLOYEES (see GOVERNMENT, INSURANCE) PUBLIC EMPLOYEES’ RETIREMENT SYSTEM (see GOVERNMENT) PUNITIVE DAMAGES (see CIVIL PRACTICE) REAL PROPERTY � Affordable Housing In the Matter of the Adoption of N.J.A.C. 5:94 and 5:95 , A-1960-04T3; Appellate Division; opinion by Cuff, P.J.A.D.; decided and approved for publication January 25, 2007. Before Judges Cuff, Winkelstein and Baxter. On appeal from the New Jersey Council on Affordable Housing. DDS No. 41-2-6266 [127 pp.] COAH’s use of filtering in calculating the statewide and regional housing need is unsupported by the record, thus requiring a reconsideration of the need calculation; COAH’s growth-share rules, as well as the regulations permitting municipalities to provide affordable housing without offsetting benefits and to permit age-restrictions to 50% of affordable housing to be built in a municipality, are invalidated. 187 N.J.L.J. 433 In re Adoption of Uniform Housing Affordability Controls, A-2678-04T3; Appellate Division; opinion by Winkelstein, J.A.D.; decided and approved for publication January 25, 2007. Before Judges Cuff, Winkelstein and Baxter. On appeal from the New Jersey Housing and Mortgage Finance Agency, R-2004-D475. DDS No. 41-2-6267 [27 pp.] The lower affordability ceilings for rental and ownership developments eligible to receive COAH credits established by the New Jersey Housing and Mortgage Finance Agency (HMFA), set forth in N.J.A.C. 5:80-26, are not inconsistent with the agency’s legislative mandate, and the regulation is not arbitrary, capricious or unreasonable. 187 N.J.L.J. 435 REAL PROPERTY � Assessments � Condominiums � Mortgagees Woodview Condominium Association v. Shanahan , A-1018-05T2; Appellate Division; opinion by Parrillo, J.A.D.; decided and approved for publication February 26, 2007. Before Judges Lefelt, Parrillo and Sapp-Peterson. On appeal from the Law Division, Cumberland County, CUM-L-422-05. [Sat below: Judge Fisher.] DDS No. 34-2-6614 [15 pp.] A mortgagee in possession is liable for delinquent condominium charges which accrued against the property’s legal owner during the mortgagee’s possession and control of the premises. 187 N.J.L.J. 883 REAL PROPERTY � Commercial Leases � Constructive Eviction � Experts � Landlord/Tenant JS Properties, L.L.C. v. Brown and Filson Inc., A-5993-04T1; Appellate Division; opinion by Fisher, J.A.D.; decided and approved for publication December 27, 2006. Before Judges Wefing, C.S. Fisher and Messano. On appeal from the Law Division, Sussex County, SSX-L-626-00. [Sat below: Judge Russell.] DDS No. 27-2-5998 [20 pp.] Since the commercial tenant delayed its departure from the premises for an unreasonable time after being sued for possession, the dismissal of its novel claim of constructive eviction based on the landlord’s allegedly malicious suit for possession is affirmed and its merits are not addressed. 187 N.J.L.J. 47 REAL PROPERTY � Condemnation � Notice City of Passaic v. Shennett , A-1311-05T5; Appellate Division; opinion by Parker, J.A.D.; decided and approved for publication February 9, 2007. Before Judges Wefing, Parker and C.S. Fisher. On appeal from the Law Division, Passaic County, L-3779-03. [Sat below: Judge Passero.] DDS No. 44-2-6445 [16 pp.] Where the City failed to comply with precondemnation requirements and the condemnee was not properly served with the complaint or a notice of the commissioners’ hearing, the default judgment must be vacated, notwithstanding the property’s sale to a third party. 187 N.J.L.J. 614 REAL PROPERTY � Federal Housing � Landlord and Tenant Housing and Redevelopment Authority of Franklin Township v. Mayo, A-3630-05T3; Appellate Division; opinion by Lefelt, J.A.D.; decided and approved for publication January 24, 2007. Before Judges Lefelt, Parrillo and Sapp-Peterson. On appeal from the Law Division, Somerset County, LT-2131-05. [Sat below: Judge Kumpf.] DDS No. 27-2-6254 [15 pp.] That the unauthorized residents vacated defendant’s public housing apartment two days before trial on the eviction complaint is not alone sufficient to cure the lease violation; other cures may, however, be available and must be explored. 187 N.J.L.J. 354 REAL PROPERTY � Landlord and Tenant � Wrongful Eviction Hale v. Farrakhan , A-1048-05T3; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication February 5, 2007. Before Judges Skillman, Lisa and Holston. On appeal from the Law Division, Special Civil Part, Essex County, DC-0011294-05. [Sat below: Judge Davidson.] DDS No. 27-2-6386 [13 pp.] Where a tenant vacates a residential unit based on the landlord’s intention to occupy the premises, the landlord has the burden of proving, in a wrongful-eviction action, that her failure to occupy the unit was not arbitrary. 187 N.J.L.J. 510 REAL PROPERTY � Notice � Tax-Sale Certificates 21-23 Seidler Associates, L.L.C., et al v. City of Jersey City , A-0460-05T1; Appellate Division; opinion by Lefelt, P.J.A.D.; decided and approved for publication March 16, 2007. Before Judges Lefelt, Parrillo and Sapp-Peterson. On appeal from the Chancery Division, Hudson County, C-124-04. [Sat below: Judge Olivieri.] DDS No. 35-2-6806 [18 pp.] Failure to give formal notice of the demolition costs to plaintiff’s predecessor-in-interest before the demolition lien was recorded invalidates the demolition lien. 187 N.J.L.J. 1176 REDEVELOPMENT PLANS (see LAND USE and PLANNING) REINSTATEMENT (see CIVIL PRACTICE) RENEWABLE ENERGY CERTIFICATES (see ENERGY AND NATURAL RESOURCES) RESIDENT CHILDREN (see INSURANCE) RESTRAINING ORDERS (see CRIMINAL PRACTICE) RETIREMENT (see GOVERNMENT) RETROACTIVITY (see TAXATION) RIGHT TO CONFRONTATION (see CRIMINAL PRACTICE) ROBBERY (see CRIMINAL PRACTICE) SALES TAX (see TAXES) SCARS (see INSURANCE) SCHOOLS and EDUCATION � Boards of School Estimate Township of Maplewood v. Township of South Orange Village et al , A-0466-05T5; Appellate Division; opinion by Coleman, J.A.D.; decided and approved for publication February 28, 2007. Before Coburn, Axelrad and R.B. Coleman. On appeal from the State Board of Education, No. 25-05. DDS No. 16-2-6636 [6 pp.] Under N.J.S.A. 18A:22-5, a Board of School Estimate majority must include (i) five of the eight members of the full BSE; and (ii) four of the six BSE members appointed by the two municipalities. 187 N.J.L.J. 886 SCHOOLS and EDUCATION � Hostile Environment � Law Against Discrimination � Sexual Orientation L.W. v. Toms River Regional Schools Board of Education, A-111 September Term 2005; Supreme Court; opinion by Zazzali, C.J.; decided February 21, 2007. On appeal from and certification to the Appellate Division, 381 N.J. Super. 465 (App. Div. 2005). [Sat below: Judges Rodriguez, Alley and Yannotti in the Appellate Division.] DDS No. 16-1-6549 [40 pp.] The LAD recognizes a cause of action against a school district for student-on-student affectional or sexual orientation harassment. 187 N.J.L.J. 773 SEARCH AND SEIZURE (see CRIMINAL PRACTICE) SELF-INCRIMINATING TESTIMONY (see CIVIL PRACTICE) SELF-INCRIMINATION (see CRIMINAL PRACTICE) SETTLEMENTS (see TORTS) SEXUAL ORIENTATION (see SCHOOLS and EDUCATION) SEXUALLY VIOLENT PREDATOR ACT (see CRIMINAL PRACTICE) SHOPLIFTING (see CRIMINAL PRACTICE) SOCIAL SERVICES LAW � Medicaid I.L. v. New Jersey Department of Human Services, Division of Medical Assistance and Health Services , A-3476-04T1; Appellate Division; opinion by Wecker, J.A.D.; decided July 25, 2006; approved for publication December 29, 2006. Before Judges Wefing, Wecker and Graves. On appeal from a final agency decision of the Department of Human Services, Division of Medical Assistance and Health Services, HMA-4713-2004S and HMA 8178-2004S. DDS No. 22-2-4623 [14 pp.] Where an individual suffers from dementia and no guardian has power over her assets, the cash value of her life insurance policies are not accessible to her and, therefore, she is eligible under the Medicaid Only program. 187 N.J.L.J. 198 SOLID WASTE MANAGEMENT ACT (see ENVIRONMENTAL LAW) STATE HEALTH BENEFITS COMMISSION (see INSURANCE) SUMMARY DISPOSSESS ACTIONS (see LEGAL PROFESSION) SUMMARY JUDGMENT (see INSURANCE) SUMMATIONS (see CRIMINAL PRACTICE) SURETIES (see CRIMINAL PRACTICE) TAX FORECLOSURES (see TAXATION) TAX-SALE CERTIFICATES (see REAL PROPERTY, TAXATION) TAXATION � Foreclosure � Tax-Sale Certificates Simon v. Cronecker et al, etc. , A-105/106 September Term 2005; Supreme Court; opinion by Albin, J.; decided January 29, 2007. On certification to the Chancery Division, Cape May County. [Sat below: Judge Todd.] DDS No. 34-1-6307 [50 pp.] The Tax Sale Law does not prohibit a third-party investor from redeeming a tax-sale certificate after the filing of a foreclosure action provided that the investor timely intervenes in the action and pays the property owner more than nominal consideration for the property. 187 N.J.L.J. 429 Simon v. Rando et al, etc., A-121/122 September Term 2004; Supreme Court; opinion by Albin, J.; decided January 29, 2007. On certification to the Appellate Division, 374 N.J. Super. 147 (2005). [Sat below: Judges Skillman, Parrillo and Grall in the Appellate Division; Judges Himmelberger and Span in the Chancery Division.] DDS No. 34-1-6306 [10 pp.] A third-party investor who acquires prior tax-sale certificates after the filing of a tax-foreclosure action by the holders of the subsequent tax certificates may redeem the later certificates provided that it timely intervenes in the action and paid more than nominal consideration for the certificates. 187 N.J.L.J. 430 TAXATION � Foreclosures � Retroactivity � Tax-Sale Certificates Malinowski v. Jacobs, A-46 September Term 2005; Supreme Court; opinion by Albin, J.; decided January 29, 2007. On appeal from the Appellate Division. [Sat below: Judges Fall, C.S. Fisher and Payne in the Appellate Division.] DDS No. 34-1-6308 [14 pp.] Cronecker and Rando, which address the redemptive rights and duties of a third-party investor who acquires an interest in property after the filing of a tax-sale foreclosure complaint, must be given retroactive effect. 187 N.J.L.J. 430 TAXATION � Tax Foreclosures Coryell, L.L.C. v. Curry et al, etc. , A-3758-04T5 and A-3759-04T5; Appellate Division; opinion by Sapp-Peterson, J.S.C. (temporarily assigned); decided October 5, 2006; approved for publication March 5, 2007. Before Judges Lefelt, Parrillo and Sapp-Peterson. On appeal from the Chancery Division, Atlantic County, F-10461-03. [Sat below: Judge Seltzer in the Chancery Division.] DDS No. 35-2-5277 [15 pp.] Rule 4:64-1(f) and due process are satisfied when a mortgagee receives notice reasonably calculated to apprise it of a foreclosure action. 187 N.J.L.J. 1175 TAXES Yilmaz Inc. v. Director, Division of Taxation, A-0080-05T5; Appellate Division; opinion by Axelrad, J.T.C. (temporarily assigned); decided and approved for publication February 2, 2007. Before Judges Axelrad, R.B. Coleman and Gilroy. On appeal from the Tax Court, No. 240-2003, at 22 N.J. Tax 204 (Tax 2005). [Sat below: Judge Menyuk.] DDS No. 35-2-6375 [12 pp.] The Tax Court correctly held that when a taxpayer challenges an assessment based on an audit of a cash business, involving only factual issues and the methods employed by the director, the taxpayer can rebut the presumption that the assessment is correct only by cogent evidence that is “definite, positive and certain in quality and quantity to overcome the presumption.” 187 N.J.L.J. 512 TAXES � Sales Tax Campo Jersey Inc. v. Director, Division of Taxation, etc. , A-5384-04T5 and A-6078-04T5; Appellate Division; opinion by Parrillo, J.A.D.; decided and approved for publication February 8, 2007. Before Judges Lefelt, Parrillo and Sapp-Peterson. On appeal from the Tax Court, 22 N.J. Tax 251 (2005). DDS No. 35-2-6439 [24 pp.] In the absence of a statutory definition of “premises,” it was reasonable for the Division of Taxation to focus on the nature of food being sold at a stadium and mall as being readily consumable, and the division’s assessment of a deficiency against both appellants is affirmed. 187 N.J.L.J. 613 TERMINATION OF PARENTAL RIGHTS (see FAMILY LAW) TORTS � Firefighters’ Rule Ruiz v. Mero , A-28/29 September Term 2006; Supreme Court; opinion by Long, J.; decided March 13, 2007. On certification to the Appellate Division, 385 N.J. Super. 382 (App. Div. 2006). [Sat below: Judges Coburn, Collester and Lisa in the Appellate Division; Judge Deanne M. Wilson in the Law Division.] DDS No. 31-1-6771 [21 pp.] The firefighters’ rule has been abrogated by N.J.S.A. 2A:62A-21. 187 N.J.L.J. 1077 TORTS � Jury Instructions � Medical Malpractice Clark v. University Hospital-UMDNJ et al, A-0257-05T5; Appellate Division; opinion by Lefelt, P.J.A.D.; decided November 15, 2006; approved for publication January 30, 2007. Before Judges Lefelt, Parrillo and Sapp-Peterson. On appeal from the Law Division, Essex County, L-6668-02. [Sat below: Judge Bernstein.] DDS No. 29-2-5632 [19 pp.] The trial judge did not err in instructing that the proper standard of care for defendant-residents is that of a general practitioner, or on the effect of the prior settlement; his finding that the damage award was not excessive was proper. 187 N.J.L.J. 434 TORTS � Legal Malpractice � Medical Experts � Settlements Kranz v. Tiger et al , A-2459-04T2; Appellate Division; opinion by Coburn, P.J.A.D.; decided and approved for publication February 1, 2007. Before Judges Coburn, Axelrad and Gilroy. On appeal from the Law Division, Morris County, L-3661-00. [Sat below: Judge Dumont.] DDS No. 04-2-6347 [23 pp.] Plaintiff presented sufficient evidence to go to the jury in this suit-within-a � suit on his allegations that negligent miscommunication between his attorneys and his medical expert caused him to accept a settlement to his detriment on the mistaken assumption that the expert was not available to testify. 187 N.J.L.J. 511 TRANSFER PENALTIES (see HEALTH LAW) TRUSTS and ESTATES � Distributions In the Matter of the Estate of Hope , A-3470-05T2; Appellate Division; opinion by Winkelstein, J.A.D.; decided and approved for publication February 22, 2007. Before Judges Cuff, Winkelstein and Baxter. On appeal from the Chancery Division, Probate Part, Camden County, CP-108-03. [Sat below: Judge Vogelson.] DDS No. 38-2-6582 [12 pp.] Despite a statutory preference for in-kind distribution, under the circumstances, the trial judge did not abuse his discretion in ordering the property in the residuary estate sold and the proceeds distributed in cash. 187 N.J.L.J. 779 UNIFORM COMMERCIAL CODE (see BANKING) UNIFORM INTERSTATE FAMILY SUPPORT ACT (see FAMILY LAW) UNINSURED-MOTORIST COVERAGE (see INSURANCE) UTILITIES (see CIVIL PRACTICE) VACCINES (see HEALTH LAW) VIDEOTAPES (see GOVERNMENT) VIOXX (see PRODUCT LIABILITY) WITNESSES (see CRIMINAL PRACTICE) WORKERS’ COMPENSATION � Bankruptcy Morella v. Grand Union/New Jersey Self-Insurers Guaranty Association , A-0056-05T3; Appellate Division; opinion by Gilroy, J.A.D.; decided and approved for publication March 21, 2007. Before Judges Axelrad, R.B. Coleman and Gilroy. On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers’ Compensation, C.P. 9239045. [Sat below: Judge Karch.] DDS No. 39-2-6852 [15 pp.] An employee whose injury occurs before the employer’s insolvency is not required to file a proof of claim in the employer’s bankruptcy proceeding before qualifying for compensation payments under N.J.S.A. 34:15-120.18a. 187 N.J.L.J. 1178 WRONGFUL EVICTION (see REAL PROPERTY)

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