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STATE COURT CASES FAMILY LAW � CHILD SUPPORT � COUNSEL FEES � EQUITABLE DISTRIBUTION 20-2-7840 Chen, etc. v. Chao, App. Div. (per curiam) (9 pp.) As plaintiff failed to appeal or file a motion for reconsideration of the trial court’s 2005 order directing him to pay plaintiff $6,000 and directing the parties to equally divide the remaining balance of an escrow account, the panel rejects his current challenge and affirms the order; in any event, the panel is satisfied that the judge, who was thoroughly familiar with the parties’ claims and the history of the litigation, did not abuse his discretion on those issues. With respect to the denial of defendant’s other requests for relief, however, the panel reverses. Plaintiff’s counsel acknowledges her delay in providing defendant with a deed to the parties’ Keansburg property, and advises that her client does not object to defendant’s sister being named as co-trustee of the children’s educational fund. The remaining unresolved issues are remanded to the trial court, including the judge’s award of counsel fees to plaintiff and defendant’s claim of overpayment of child support. FAMILY LAW � EQUITABLE DISTRIBUTION � BUSINESSES � INVENTORY CREDIT 20-2-7841 Maybaum v. Maybaum, App. Div. (per curiam) (39 pp.) In a case with a long and complex history, the court details the parties’ acquisition of two liquor stores each from plaintiff’s father, and their involvement in the family businesses during their eleven-year marriage, always under the auspices of plaintiff’s father and his management company. It also reviews the findings of various experts appointed by the court to value the business interests for purposes of equitable distribution, including inventory credits and tax consequences, and attorney’s fees. On plaintiff’s appeal from the trial judge’s orders, although the court is satisfied that the judge properly rejected plaintiff’s proposed 32.1% upward adjustment to inventory and the court-appointed forensic expert’s working capital adjustments, the court finds merit in her contention that the judge erred in failing to credit her for her 50% share of the Ledgewood and Gillette store inventories. The court rejects her remaining contentions, however, including challenges to, inter alia, the court’s enhanced valuation of the Hackensack business; the court’s distribution to defendant half of the proceeds of a note without regard to income tax liability; the distribution of the proceeds of sale of a piece of property on Long Island; and issues regarding the marital home. FAMILY LAW � DOMESTIC VIOLENCE � JURISDICTION 20-2-7842 Doe v. Brown, App. Div. (per curiam) (7 pp.) The parties were divorced in Florida in 2003, where defendant still lives. Plaintiff, who moved to N.J., sought a domestic violence final restraining order against defendant for three terroristic threats made to her cell phone from a Pennsylvania pay phone. The caller said he was calling for defendant, and threatened plaintiff to let defendant see his child or she would “be dead” and “the baby [would] be out of the country.” Defendant, who had never been to N.J., contested the court’s jurisdiction over him, but the trial judge, characterizing the calls as vile and menacing, found that they were clearly made at defendant’s prompting. Citing a history of physical altercations, menacing behavior, and foul language, the judge concluded that plaintiff had established a terroristic threat sufficient to activate the court’s domestic violence jurisdiction and entered the FRO. The appellate panel affirms, noting that the domestic violence order did not change Florida’s jurisdiction over the pending custody/visitation disputes, but merely took the minimum action necessary to protect a N.J. resident. INSURANCE � VERBAL THRESHOLD 23-2-7843 Reyes v. Clegg, et al., App. Div. (per curiam) (3 pp.) The appellate court affirms the trial judge’s dismissal of plaintiff’s automobile negligence complaint for failure to vault the verbal threshold where her emergency room diagnosis was strain of the neck and back, and X-rays and MRI’s were essentially normal. Although, at some point, an EMG indicated right L5 radiculopathy, the findings were neither acute nor chronic, and the physician performing the test did not relate his findings to the subject accident. At her last physical examination, her own physician indicated that plaintiff had improved markedly and had little pain, with very good range of motion and no tenderness or spasm. Although a referring physician had made some findings that tended to support plaintiff’s permanency claim, her ultimate status was that which was established by her own physician on her last visit, and no permanency was indicated. PARTNERSHIPS � PHYSICIANS � EQUITABLE ESTOPPEL 02-2-7844 Bromberg, M.D., etc. v. Velez, M.D. , App. Div. (per curiam) (12 pp.) The court affirms the trial judge’s “with prejudice” dismissal, after a bench trial, of both the complaint and counterclaim in this dispute arising out of a partnership between two physicians who purchased a building and entered into an unwritten agreement to practice jointly. The judge found that the figures used in the actual calculation of management fees were plaintiff’s “for the asking” during the three years of the parties’ amicable relationship, yet she accepted distributions without argument. Having done so, he concluded that she was now estopped from contesting the calculation method. Neither defendant nor the partnership accountant were aware of any grievance from plaintiff and relied on her apparent satisfaction in proceeding with the accounting and tax reporting without incident. Had defendant not been “lulled into inaction,” the judge found that he could have changed his methods or taken appropriate steps earlier to protect his interests. As to the defendant’s counterclaim, the court likewise found that these claims were similarly without merit; it was not until plaintiff filed her suit that defendant demanded additional compensation, which claims were presented, in hindsight, to act as a set-off in the event plaintiff prevailed on her claims. TAXATION � LOCAL PROPERTY TAX — ABATEMENTS 35-2-7845 Sumo Property Mgmt., L.L.C. v. City of Newark, App. Div. (per curiam) (16 pp.) The Tax Court granted summary judgment to the City of Newark and denied plaintiff’s application for a five-year abatement from local property taxes on its four lots under applicable state law and municipal ordinance related to development and rehabilitation of commercial structures in blighted areas. The abatement request on one parcel opined that the construction did not qualify as either “new construction” or “rehabilitation” and another found that the structure on a different parcel did not meet the definition of a commercial and industrial structure; therefore neither was eligible for the abatement. The Tax Court upheld the rulings, although concluding that plaintiff’s property was a “commercial structure” within the intendment of the ordinance, it was not “eligible property” because it was not “newly constructed” when considering that the complex operated as a single, integrated economic unit. Also the court found that plaintiff was judicially estopped from now seeking abatements for two new and separate buildings when it originally sought abatement for the “entire” property. Finally, the court found that, when viewing the property as a unitary whole, the abatement applications were untimely because they were filed beyond thirty days of the 1995 completion of the industrial warehouse’s renovation. The appellate panel reverses and remands, agreeing with plaintiff that the Tax Court erred in finding both the two new structures not “eligible” for tax abatement under the ordinance, and its abatement applications untimely. WORKER’S COMPENSATION � CANCELLATION OF POLICY � NOTICE 39-2-7846 Sroczynski v. Milek, etc., et al. , App. Div. (per curiam) (16 pp.) The compensation judge aptly denied the motion of N.J. Manufacturers Ins. Co. (NJM) seeking to be dismissed as the worker’s compensation carrier for the defendant Milek Construction Company. The order specified that, because NJM had not fully complied with the provisions of N.J.S.A. 34:15-81 when it provided notice to Milek of the cancellation of its worker’s compensation insurance policy due to non-payment of the premium, the attempted cancellation was ineffective. The appellate panel affirms, rejecting NJM’s arguments that its cancellation procedures substantially complied with the statute and that the compensation judge erred when she concluded that its cancellation of the policy was ineffective. FEDERAL COURT CASES PUBLIC RECORDS � FREEDOM OF INFORMATION ACT — EXEMPTIONS 52-7-7847 Finkel v. U.S. Dept. of Labor, et al. , U.S. Dist. Ct. (Cooper, U.S.D.J.) (28 pp.) In this action brought by plaintiff, a research scientist and professor with appointments at several N.J. universities, alleging that his requests for certain information pursuant to the Freedom of Information Act (FOIA) were constructively denied by defendants, the court denies the defendants’ motion for summary judgment and grants the plaintiff’s cross-motion. Plaintiff, in his capacity as Professor of Environmental and Occupational Health at the University of Medicine and Dentistry of N.J., School of Public Health, sought records relating to possible exposures of OSHA Compliance Safety and Health Officers (inspectors) to unhealthy levels of beryllium. He sought the information to conduct statistical analyses of trends in beryllium concentrations, to estimate the exposure potential of the OSHA compliance officer workforce, and in the interest of general public health. While the FOIA exemptions permits an agency to withhold trade secrets and privileged or confidential commercial or financial information, plaintiff persuasively argues that the defendant has not met its burden of showing that there is confidential commercial information or that there are trade secrets in the database. The judge also concludes that the information will not unnecessarily intrude upon the inspectors’ privacy rights and that the public interest in disclosure is more compelling. Thus, the defendant has not met its burden of justifying its decision to withhold the requested material pursuant FOIA Exemptions 4, 6 or 7. [Filed Jun. 29, 2007.] CRIMINAL LAW AND PROCEDURE — SENTENCING 14-8-7848 U.S.A. v. Leekins, Third Cir. (Sloviter, C.J.) (13 pp.) The circuit panel affirms defendant’s sentence, rejecting his assertions that: (1) the sentence was imposed in violation of Booker; (2) the sentence denied him his Sixth Amendment right to a jury trial because it was based upon facts found by a judge at his sentencing hearing that he had not admitted in his plea colloquy; and (3) the District Court judge erred in admitting a police report into evidence at the sentencing hearing because it bore no “indicia of reliability.” [Filed Jun. 29, 2007.][Precedential.] ***** Additional opinion approved for publication: DDS No. 25-2-6705, Kas Oriental Rugs, Inc. v. Ellman, decided on Mar. 6, 2007, has been approved for publication by the Committee on Opinions as of Jul. 2, 2007. The opinion was authored by Fisher, J.A.D. and is available as 25-2-6705A. The full squib is repeated below for ease of reference: LABOR AND EMPLOYMENT — COMMISSIONS 25-2-6705 Kas Oriental Rugs, Inc. v. Ellman, App. Div. (per curiam) (18 pp.) After a bench trial in this dispute between a sales representative and his principal, the trial judge found that, upon the representative’s termination, the parties’ oral contract required only that the principal pay the commissions due on orders received as of the termination date, but he nevertheless awarded post-termination commissions on a quantum meruit theory. Because the appellate panel concludes that the latter award was inconsistent with the terms of the contract, it reverses. [Approved for publication.] — Susan M. Clapp, Esq., Editor

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