To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or

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Kenneth Vercammen was included in the 2011 “Super Lawyers” list published by Thomson Reuters.

Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures for the Bar and handles litigation matters. He is Past Chair of the ABA Tort & Insurance Committee,GP on Personal Injury and was a speaker at the ABA Annual Meeting attended by 10,000 attorneys and professionals. To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or

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Kenneth Vercammen & Associates, P.C.

2053 Woodbridge Avenue - Edison, NJ 08817

(732) 572-0500

Sunday, January 25, 2015

NEWFIELD FIRE COMPANY NO. 1 VS. THE BOROUGH OF NEWFIELD A-0751-13T4


NEWFIELD FIRE COMPANY NO. 1 VS. THE BOROUGH OF
          NEWFIELD
A-0751-13T4
We consider the scope of N.J.S.A. 40A:14-68, which allows a municipality to exercise "supervision and control" over a volunteer fire company designated as its official firefighting organization. Rejecting challenges by the plaintiff fire company, we conclude the statute allows the defendant borough to use an ordinance to set forth the terms and conditions upon which it would engage the volunteer fire company to perform the governmental function of firefighting.
Further, the plain language of this statute reflects the Legislature's intent to assure governmental supervision and control over volunteer fire companies to the extent they are charged with performing public functions funded by public taxpayer resources and the ordinance under review, as excised by the trial judge, does not exceed the designated authority.
Finally, we note the fire company can reject the proposed terms and cease its role as the designated fire organization in the borough. If so, the borough is free to attempt to resolve the disagreements or contract with a neighboring fire company under the required terms. 

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. S.H. AND M.H., IN THE MATTER OF S.H. A-0080-13T3

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS.
          S.H. AND M.H., IN THE MATTER OF S.H.
A-0080-13T3
After her son directed an expletive at her, defendant mother threw shoes at him, hit him with her hands, struck him in the legs with a golf club, and bit him three times on the shoulder. After a fact-finding hearing, the trial court determined that the mother did not abuse or neglect the child because his use of profanity provoked her and her actions were justified.
The child was diagnosed with ADHD and was enrolled as a special education student in his high school's behavior disability program. The judge relied on our decision in New Jersey Division of Youth & Family Services v. K.A., 413 N.J. Super. 504, 511 (App. Div. 2010), certif. dismissed, 208 N.J. 355 (2011), noting that the child was "out of control" and presenting challenges to his parents.
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We distinguished K.A. based on the severity of the child's injuries, the mother's use of instrumentalities in inflicting those injuries, and the unreasonable and disproportionate nature of the response. We also noted our view that K.A. should not be read to suggest that the test for determining excessive corporal punishment should be any different when the child has a disability.
We reversed and remanded for the entry of an order finding that the mother abused or neglected the child. 

LEONARDO ARIAS, ET AL. VS. ELITE MORTGAGE GROUP, INC, ET AL. A-4599-12T1


LEONARDO ARIAS, ET AL. VS. ELITE MORTGAGE GROUP, INC,
          ET AL.
A-4599-12T1
This case concerns the legal status of a Trial Period Plan (TPP) Agreement issued to plaintiffs under the federal Home Affordable Mortgage Program (HAMP). The issue is novel in New Jersey. Relying on Wigod v. Wells Fargo Bank, N.A., 673 F. 3d 547 (7th Cir. 2012), and the line of cases following Wigod, we concluded that the TPP Agreement was a unilateral offer pursuant to which the bank promised to give plaintiffs a loan modification, provided they complied fully and timely with their obligations under the Agreement. Those obligations included timely submission of the lower payments required of them during the trial period. We found that summary judgment was properly granted, because plaintiffs failed to make timely or complete payments during the trial period. 

ANDREA N. FRAZIER VS. BOARD OF REVIEW, DEPARTMENT OF LABOR AND CENTER FOR FAMILY SERVICES, INC. A-6228-12T3

 ANDREA N. FRAZIER VS. BOARD OF REVIEW, DEPARTMENT OF
          LABOR AND CENTER FOR FAMILY SERVICES, INC.
          A-6228-12T3
Claimant, who was simultaneously working both full-time and part-time, was terminated from her full-time job through no fault of her own. The part-time job was not suitable as her sole employment due to the low hourly pay and unreliable schedule. Seven months later she quit her part-time job to take another part-time job that offered her higher pay, a regular schedule and a possible path to full-time employment. When she had to leave that second part-time job due to unsafe working conditions, the agency determined she was partially disqualified from benefits because she voluntarily quit her earlier part-time job even though it did not interfere with her quest for full- time employment. N.J.A.C. 12:17-9.2(a)(2), however, explains that partial disqualification may be avoided when the claimant
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leaves part-time employment for personal reasons "which arise from the loss of the full-time employment[.]" Thus the reasons given by the agency for partial disqualification were insufficient and reversal was required. 

JOHN E. MYERS, TRUSTEE, AND DIANE D. MYERS, TRUSTEE, VS. OCEAN CITY ZONING BOARD OF ADJUSTMENT AND CITY OF OCEAN CITY A-2568-13T2


JOHN E. MYERS, TRUSTEE, AND DIANE D. MYERS, TRUSTEE, VS. OCEAN CITY ZONING BOARD OF ADJUSTMENT AND CITY OF OCEAN CITY
A-2568-13T2

The City of Ocean City challenged the trial court's order compelling it to respond to a proposed zoning change recommended by the Ocean City Planning Board in its master plan reexamination report. Construing N.J.S.A. 40:55D-62(a), the trial court concluded that a governing body must adopt an ordinance consistent with a change proposed in a reexamination report, or the governing body must affirmatively reject the change after a hearing. We reverse, holding that the statute does not require a governing body to affirmatively act in response to a master plan recommendation, so long as the existing ordinance is substantially consistent with the master plan's land use and housing plan elements. 

FELIX PEGUERO VS. TAU KAPPA EPSILON LOCAL CHAPTER, TAU KAPPA EPSILON NATIONAL CHAPTER, GREG SPINNER AND THOMAS PRICE, ET AL. A-5419-12T4

FELIX PEGUERO VS. TAU KAPPA EPSILON LOCAL CHAPTER, TAU KAPPA EPSILON NATIONAL CHAPTER, GREG SPINNER AND THOMAS PRICE, ET AL.
A-5419-12T4

Plaintiff attended a large party hosted at a private residence rented by several fraternity members. After consuming several drinks, plaintiff interceded in an argument that erupted in the backyard among other persons who were at the party. While trying to assist a friend involved in that argument, plaintiff was shot and wounded by another person who was at the party. The shooter was never apprehended or identified. There was no evidence that the fraternity had any past incidents involving guns on the premises or involving violent criminal behavior. There was also no proof that the shooter was a minor or a visibly intoxicated person who had been served alcohol at the party.
Plaintiff brought a negligence action against the national fraternity, the local fraternity chapter, and several students who were leaders or members of the fraternity. Defendants moved for summary judgment, which the trial court granted.
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We affirm the summary judgment order because we agree with the motion judge that there was no evidence showing that it was reasonably foreseeable that plaintiff would have been shot by a third party while attending an event hosted by the fraternity members. Hence, defendants breached no legal duty to plaintiff and were entitled to a judgment dismissing his negligence claims. For various reasons, the circumstances presented here are distinguishable from those in Clohesy v. Food Circus Supermarkets, 149 N.J. 496 (1997) and Butler v. Acme Markets, Inc., 89 N.J. 270 (1982), in which the Supreme Court recognized that the defendant supermarket owners owed a duty to protect their patrons from foreseeable criminal acts occurring on their premises.

Thursday, January 15, 2015

SANDRA COSTA VS. PAULO A. COSTA A-2078-13T4

SANDRA COSTA VS. PAULO A. COSTA
          A-2078-13T4
A parent's relocation to another country, while normally a change of circumstances warranting modification of that parent's physical custody, does not necessarily constitute a change of circumstances warranting modification of joint legal custody. Modern communications can enable the distant parent to remain a joint decision-maker in the major decisions regarding the children's welfare.
A change in joint legal custody is not justified by difficulties in renewing the children's passports, where the foreign parent consents to a court order authorizing the domestic parent to obtain a passport for the children regardless of the custodial arrangements, and authorizing the minor to travel. See 22 C.F.R. § 51.28(a)(3)(ii)(E) (2014).
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Accordingly, the trial court did not err in denying the domestic parent's motion to obtain sole legal custody for such purposes.