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STATE COURT CASES ATTORNEYS – DISCIPLINE – REFERRALS TO NON-LAWYERS 04-01-9354 I/M/O Kaplan, et al., Disciplinary Review Bd. (DeCore, Chief Counsel) (133 pp.) The Disciplinary Board of the Supreme Court recommends suspensions for three partners of Tomar Simonoff, a defunct personal injury firm that paid more than $1 million in unethical referral fees to non-lawyer employees in the 1990′s. A reprimand for another attorney, and censure for the entire firm, were also recommended. The Board indicated, however, that eight partners should not be disciplined, although they knew about the payment policy and, in some cases, participated in the scheme. Further, some partners were permitted to confess to minor misconduct and escape being prosecuted and identified publicly. AUTOMOBILES – NEGLIGENCE – SKID MARKS 05-2-9355 Brimmer v. Melendez, App. Div. (per curiam) (12 pp.) Following a jury’s verdict for the defendant in this intersectional automobile accident case, the trial court properly denied plaintiff’s motion to set aside the verdict, or for a new trial. The thrust of plaintiff’s argument was that defendant violated the court’s prohibition against his expert testifying that a thirty-foot skid mark (the shorter of two) could be used in isolation to calculate defendant’s speed. The court ultimately determined that the jury’s decision rested on which party went through the red light, not on the speed of the vehicles. Therefore, the testimony, and defense counsel’s closing remarks on that testimony, did not constitute a miscarriage of justice. The appellate panel agrees, and also agrees with defendant that the testimony was properly admitted to cast doubt on the investigating police officer’s testimony that defendant’s vehicle made the marks, and on plaintiff’s expert’s testimony as to the speed of defendant’s vehicle. CIVIL PROCEDURE – INTERVENORS � SERVICE 07-2-9356 Gowran v. Wawa, Inc., et al.; Robert Wood Johnson University Hospital v. Gowran, App. Div. (Fisher, J.A.D.) (5 pp.) In this appeal, the court holds that the intervenor was not required to personally serve, upon plaintiff, a third-party complaint which sought relief from plaintiff, but was only required to serve the pleading on plaintiff’s attorney of record. [Approved for publication.] CONTRACTS – JURISDICTION � COMITY 11-2-9357 W.H. Industries, Inc. v. Fundicao Balancins, Ltd., App. Div. (Coburn, P.J.A.D.) (9 pp.) In this breach of contract action between companies located in New Jersey and Brazil, procedural errors committed by plaintiff in the trial court and in this court preclude a determination that plaintiff established sufficient minimum contacts to satisfy its burden of proof on the issue of specific jurisdiction over the foreign company. Assuming sufficient contacts for specific jurisdiction, international comity nonetheless justified dismissal of plaintiff’s complaint, even though its N.J. action was filed shortly before the defendant filed its action in Brazil, because: (1) the claims and counterclaims in both jurisdictions arose from the same facts and concerned the same legal issues; (2) plaintiff proceeded on its counterclaim in Brazil without asking for deference as a matter of comity to its N.J. action; (3) substantial discovery proceedings have occurred in Brazil; and (4) plaintiff has not suggested that Brazil will provide anything other than a fair resolution of the disputes. [Approved for publication.] LABOR AND EMPLOYMENT – C.E.P.A. – EDUCATION 25-2-9358 Martucci v. Bd. of Education of Freehold Regional H.S. Dist., et al., App. Div. (per curiam) (8 pp.) The plaintiff, a former tenured Administrative Supervisor in the defendant’s school district, brought this suit claiming defamation and violations of C.E.P.A., contending that he was harassed and improperly treated by defendants because he had provided information to the Attorney General’s office in 2000, in conjunction with that Office’s investigation of the School Superintendent for theft of services. On plaintiff’s appeal only as to the dismissal of the CEPA claim, the appellate panel affirms. Plaintiff largely complained of numerous assignments he was given as constituting adverse employment actions; however, defendant asserted legitimate and non-retaliatory reasons for the tasks, noting that they all fell within plaintiff’s job title. Further, a number of the actions plaintiff claims were retaliatory were as a result of decisions made by plaintiff’s immediate supervisor, with no input from defendants. The panel rejects plaintiff’s additional assertion that the grant of summary judgment to the defendants was premature, and that he was entitled to more discovery. LABOR AND EMPLOYMENT – UNEMPLOYMENT COMPENSATION 25-2-9359 Kupka v. Bd. of Review, etc., et al., App. Div. (per curiam) (4 pp.) The claimant was justifiably denied unemployment benefits because he left his job as vice president of sales for respondent Galaxy because it was making changes both in its product line and personnel, and claimant was concerned that the transition was placing a strain on customer relations and would have a negative impact on his sales and reputation. He left his job despite his employer’s assurances that Galaxy wanted him to be part of the company and to grow with it and its sales. Thus, claimant left work voluntarily without good cause attributable to the work. Interestingly, he only filed for unemployment when, after having secured a similar position elsewhere, the employer indicated that it intended to enforce a non-compete clause in claimant’s employment contract. LAND USE – VARIANCES – NOTICE REQUIREMENTS 26-2-9360 Pond Run Watershed Assn., etc., et al. v. Twp. of Hamilton Zoning Bd. of Adjustment, et al., App. Div. (Sabatino, J.A.D.) (46 pp.) A published and mailed notice of use variance applications, sought for a proposed development that included a 5,000 square foot, 168-seat restaurant with a potential liquor license, was inadequate under N.J.S.A. 40:55D-11 and Perlmart of Lacey v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 241 (App. Div. 1996), because the notice referred only to age-restricted housing and “retail/office units” and made no mention of the anticipated restaurant. Consequently, the application must be reheard by the local Zoning Board of Adjustment after a proper notice, including the proposed restaurant, is circulated. The variances issued by the Zoning Board in this case also must be presented again for public hearing because the variance conditions had included a $476,000 negotiated payment by the developer towards the costs of a proposed off-site municipal amphitheatre. Although the trial court correctly declared the developer’s payment an illegal exaction, the court should have remanded the matter to the Board rather than only excising that major feature from the overall project. [Approved for publication.] NEGLIGENCE – SLIP AND FALL – HOSPITALS 31-2-9361 Bogner, et vir. v. Rahway Hospital, App. Div. (per curiam) (11 pp.) The court affirms the judgment for defendant entered on the jury’s no cause verdict in this case for injuries sustained by the female plaintiff when she fell getting out of her hospital bed. The appellate panel agrees with the trial judge’s determinations that evidence of whether the hospital was required to keep the bed side rails upright on the date of the fall, and whether the hospital had a duty to advise the patients that the tray tables could slide, were not admissible as common knowledge, and required expert testimony, which plaintiff did not present. Her major contention was that the nurses either failed to answer the call buzzer, or, alternatively, that the buzzer was not working. Likewise, the panel agrees with the judge’s conclusion to bar plaintiff from making any reference to the contents of the “high risk fall assessment” document the hospital staff completed during the first three days of plaintiff’s hospital stay; this form is only completely apparently when a patient’s medical condition on that day presents a significant risk of causing the patient to fall. Her fall, however, occurred on the fourth day, and no such assessment existed for that day. The form would have introduced issues above and beyond the duty to respond to the call buzzer promptly, as well as the subjects of the side rails and the tray tables, already determined to have been properly excluded. Under the circumstances, the probative value of the assessment forms for the days preceding plaintiff’s fall was outweighed by the risk of undue prejudice or confusion of issues. REAL ESTATE – FORECLOSURE 34-2-9362 Bank of New York, etc. v. Green, et vir., App. Div. (per curiam) (8 pp.) In this, the last of four real property foreclosure appeals filed by the defendants-mortgagors, the appellate panel affirms the trial court’s entry of the foreclosure judgment, rejecting defendants’ assertion that they were not in default under the note and mortgage. With the exception of one payment which was reversed and returned to defendants in 2002, and transfer of two payments in 2004 from another account, defendants did not make any other payments after April of 2001, and the foreclosure complaint was not filed until June of 2004. Moreover, defendants were also in default for failing to pay taxes. Finally, the trial judge granted defendants additional time to cure their default, but they failed to deposit the monies with the court as directed when they filed their reconsideration motion. [Related to 34-2-9312, 34-2-9313 and 34-2-9314 in the 1-4-08 Alert.] WORKER’S COMPENSATION – TEMPORARY BENEFITS � PROCEDURE 39-2-9363 Sanko v. WaWa, App. Div. (per curiam) (10 pp.) The petitioner, a customer service leader and management trainee for one of defendant’s stores, filed a claim petition in October of 2002, contending that she injured her back at work as a result of moving milk crates and trash at work. Respondent answered in January of 2003, denying any work-related injury. Petitioner also filed for temporary medical and disability benefits, which respondent contested. A hearing on the latter claim was conducted in October and November of 2005, and the compensation judge heard extensive testimony on the underlying merits of petitioner’s claim, including testimony from fact witnesses and from petitioner’s medical expert. Although petitioner contended she injured her back at work, in the hospital emergency room report she claimed that she hurt it sleeping on the floor. She apparently told this to a co-worker, as well. Further, she never reported the injury at the time to the store manager, as required, and respondent’s witness stated that moving trash and milk crates was not part of petitioner’s job. The judge repeatedly directed petitioner’s counsel to file a second petition if petitioner intended to make a claim for occupational injury over time, as well as accidental injury on the one specific date, which was not done. By March, 2006, when petitioner’s counsel was still unable to produce petitioner, the judge advised counsel that she would hold one more hearing day, at which the case was to move forward. After numerous adjournments due to petitioner’s counsel’s asserted unavailability, petitioner attempted to withdraw her motion for medical and temporary benefits before the judge could decide it. The respondent filed a motion to dismiss, and the judge set a peremptory date of Oct. 19, 2006, indicating her preliminary inclination to dismiss the matter on the merits, based on the evidence she had heard, and to dismiss for petitioner’s lack of prosecution. Despite this advance notice, petitioner’s counsel did not appear on the return date, and the judge ruled in his absence, concluding that petitioner did not have an absolute right to withdraw her motion after the judge had heard virtually the entire case on the underlying merits of the claim. She also set forth at some length her reasons for finding that petitioner was not credible; that her proofs were unconvincing; and that her injury was not work related. The appellate panel affirms, noting that it was within the compensation judge’s discretion to determine how best to adjudicate the claim petition. She proceeded with judicial efficiency with a hearing directed to the core issue of whether the injury was work-related, an issue common to both the temporary benefits motion and the underlying claim petition. Petitioner was not entitled to unilaterally terminate the hearing by attempting to withdraw the motion or by failing to appear for the last court-ordered hearing date. CRIMINAL LAW AND PROCEDURE – CONSTRUCTIVE POSSESSION OF DRUGS 14-1-9364 State v. Scott, Supreme Ct. (per curiam) (6 pp. � including dissent by Long, J. and Albin, J.) The issue in this appeal as of right � arising from the dissent filed by Judge Fuentes below � is whether defendant actually or constructively possessed cocaine that was found in the vehicle in which he was a passenger. The Appellate Division concluded that the State had established physical and constructive possession, agreeing with the trial court’s analysis, and adding that the smell of raw marijuana combined with other circumstances and inferences supported the court’s decision to deny defendant’s motion for acquittal. Judge Fuentes filed a dissenting opinion, concluding that the State failed to establish physical or constructive possession. The Supreme Court affirms the judgment of the Appellate Division substantially for the reasons expressed in its majority opinion. FEDERAL COURT CASES CIVIL PROCEDURE – REINSTATEMENT 07-7-9365 Roche-Morgan, et al. v. Royal Caribbean Cruises, U.S. Dist. Ct. (Thompson, U.S.D.J.) (3 pp.) The judge finds that plaintiff’s counsel has shown excusable neglect and is entitled to reinstatement of plaintiff’s personal injury complaint where: (1) the paralegal in charge of plaintiff’s file was dismissed in July of 2006; (2) the attorney and his staff then engaged in a review of all of the client files she had handled for the purpose of referring those files to other attorneys, as the attorney’s practice no longer included personal injury cases; and (3) the attorney only recently learned of the court’s dismissal of plaintiff’s action. Reinstatement would result in little, if any, prejudice to the defendant, which was never served with the summons and complaint, and has not incurred any expense or time in defending this litigation. While conducting a negligence case and conducting discovery three years after the accident may be difficult, it is not impossible, and any potential impact on the judicial proceedings as a result of the delay would be slight. Further, nothing in the record indicates that plaintiff acted with anything other than good faith. [Filed Jan. 9, 2008.] CRIMINAL LAW AND PROCEDURE � SENTENCING – VIOLATION OF PLEA AGREEMENT 14-8-9366 U.S.A. v. Schwartz, Third Cir. (Hardiman, C.J.) (9 pp.) The defendant appeals from the judgment of sentence imposed after he entered into a written plea agreement. The gravamen of his appeal is that he should not be bound by his appellate waiver in the agreement because the Government breached the agreement and acted in bad faith when it withdrew its previously-filed motion for downward departure pursuant to § 5K1.1 of the U.S. Sentencing Guidelines, which was granted by the District Court. The circuit panel affirms, noting that defendant’s argument is logical as far as it goes, but ultimately is unpersuasive because it disregards defendant’s bail violations and drug activity after the plea agreement was entered into, but prior to sentencing. Notwithstanding that withdrawal of the downward departure motion was not among the enumerated remedies in the agreement, defendant’s drug activities were further crimes constituting lack of cooperation that authorized the withdrawal. [Filed Jan. 10, 2008.][Precedential.] Correction: In yesterday’s Alert, the case of 23-7-9352, Lange v. Metropolitan Life Ins. Co., et al., bore the wrong filing date. The case was filed on Jan. 8, 2008. � -Susan M. Clapp, Esq., Editor

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