New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htmKenneth Vercammen was included in the 2015 “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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Friday, May 13, 2016

IN THE MATTER OF THE ESTATE OF SOLOMON Z. BALK, DECEASED A-1197-14T2

 IN THE MATTER OF THE ESTATE OF SOLOMON Z. BALK, DECEASED 
A-1197-14T2 
The terms of a promissory note entered into on June 4, 2007 as a settlement between the parties required an initial payment and four installment payments to be made at specific times thereafter. Although the promisor remitted $37,000 towards the $800,000 note over eighteen months, he failed to pay the initial sum or make the installment payments in full. 
On June 2, 2014, the promisee moved to enforce the settlement agreement and enter judgment. The trial court concluded that New Jersey's six-year statute of limitations was applicable (contrary to Pennsylvania's four-year statute based on a choice-of-law analysis not a subject of this appeal) and applied the installment contract approach to determine the accrual date of the claim. 

As there was no repudiation or total breach of the promissory note, the judge correctly applied the installment method. Under this approach, a new statute of limitations begins to run against each installment when it becomes due. The promisee is entitled to all payments which became due on and after June 3, 2008. 

A.L., JR., AND A.K.L. A-4905-14T2

 A.L., JR., AND A.K.L. 
A-4905-14T2 

A biological mother succeeds in her appeal of the trial court's denial of her request to testify after the close of evidence. She did not appear for her termination of parental rights trial, but came to court seeking to testify on the day the judge was prepared to render his decision. A parent facing the termination of parental rights is entitled to every reasonable opportunity to produce evidence. If a parent seeks to reopen the record to testify after the close of evidence, the trial court is constitutionally obligated to grant that request as long as it does not interfere with the children's essential and overriding interest in stability and permanency. 

CITIZENS UNITED RECIPROCAL EXCHANGE VS. NORTHERN NJ ORTHOPEDIC SPECIALISTS A-0945-14T2

CITIZENS UNITED RECIPROCAL EXCHANGE VS. NORTHERN NJ 
ORTHOPEDIC SPECIALISTS 
A-0945-14T2 

PIP arbitration procedures permit a summary "action filed pursuant to N.J.S.A. 2A:23A-13 for review of the award." N.J.A.C. 11:3-5.6(g). Under N.J.S.A. 2A:23A-13(a), "[a] party to an alternative [dispute] resolution proceeding shall commence a summary application in the Superior Court for its vacation, modification or correction within 45 days after the award is delivered to the applicant, or within 30 days after receipt of an award modified pursuant to [N.J.S.A. 2A:23A-12(d)]." The Appellate Division holds that if a party files an application to modify under N.J.S.A. 2A:23A-12(d), or an application to modify or clarify under the rules of the PIP dispute resolution organization, a party must file any summary action within 30 days after receipt of the order resolving the application, regardless of whether the order grants or denies modification or clarification. 

Thursday, May 12, 2016

PATRICIA T. CONN, ETC. VS. BABYLIN REBUSTILLO, ET AL. A-1421-15T3

PATRICIA T. CONN, ETC. VS. BABYLIN REBUSTILLO, ET AL. 
A-1421-15T3 
The Patient Safety Act (PSA), N.J.S.A. 26:2H-12.23 to -12.25, establishes an absolute privilege for two categories of documents. N.J.S.A. 26:2H-12.25(f) (subsection (f) privilege) applies to the first category, which consists of documents received by the Department of Health (the Department) pursuant to the mandatory reporting requirement, N.J.S.A. 26:2H-12.25(c) (subsection (c)) or the voluntary disclosure provision, N.J.S.A. 26:2H-12.25(e) (subsection (e)). N.J.S.A. 26:2H-12.25(g) provides a similar privilege (subsection (g) privilege) to a second category of documents, developed as part of a "self-critical analysis" that might never be provided to the 

Department. In this interlocutory appeal, we review the statutory criteria and scope of the subsection (f) privilege and clarify the distinction between the thresholds for the application of the subsection (f) and subsection (g) privileges. We conclude: the subsection (f) privilege is not subject to review to determine whether the health care facility complied with the "process requirements" set forth in the PSA; the privilege covers all "documents, materials, or information received by the department" pursuant to N.J.S.A. 26:28-12.25(c) or (e); and attaches to those items upon receipt by the Department. 

VANESSA RIVERA VS. ELMER F. MCCRAY, III, AND NEW JERSEY RE-INSURANCE COMPANY A-2337-14T1

VANESSA RIVERA VS. ELMER F. MCCRAY, III, AND NEW JERSEY RE-INSURANCE COMPANY 
A-2337-14T1 

This appeal requires us to interpret an underinsured motorist (UIM) coverage step-down provision in a personal automobile insurance policy, issued by defendant New Jersey Re-Insurance Company (NJM). The issue presented is whether a "special policy," see N.J.S.A. 39:6A-3.3, which provides no UIM coverage at all, provides "similar coverage" so as to trigger the step-down provision and reduce UIM coverage to zero. Based on the plain language of the NJM policy and well-established principles of insurance contract interpretation, we conclude it does not. We therefore reverse the trial court's order dismissing plaintiff's claim to UIM coverage under the NJM policy. 

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. K.G. AND V.M., SR. IN THE MATTER OF V.M., JR. A-5370-13T3

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY 
VS. K.G. AND V.M., SR. IN THE MATTER OF V.M., JR. 
A-5370-13T3 

In this Title 9 case, defendant neglected her baby when she left him in the care of her older teenage son who had a serious cognitive disability. Applying the totality of the circumstances test, we agreed with the trial judge that defendant's conduct constituted gross negligence. 

A.T., AN INFANT BY HER MOTHER AND NATURAL GUARDIAN, T.T., AND T.T., INDIVIDUALLY VS. M. COHEN, M.D., ET AL. A-0589-14T1

A.T., AN INFANT BY HER MOTHER AND NATURAL GUARDIAN, 
T.T., AND T.T., INDIVIDUALLY VS. M. COHEN, M.D., ET AL. 
A-0589-14T1 
The issue in this medical malpractice case is whether a minor plaintiff can take a voluntary dismissal without prejudice under Rule 4:37-1(b) to avoid a dismissal with prejudice of her complaint for the failure to provide an affidavit of merit (AOM) within the required timeframe. The court concludes that Rule 4:37-1(b) cannot be used to circumvent the time strictures in the AOM statute even if the statute of limitations has not expired. 
Plaintiff's counsel failed to file an AOM within 120 days of the filing of the answer. No extraordinary circumstances were presented; just an "oversight" of counsel. After defendants moved for summary judgment, counsel requested leave to take a voluntary dismissal under Rule 4:37-1(b), reasoning that there remained many years until the expiration of the statute of limitations due to plaintiff's status as a minor and there was no prejudice to defendants. 
The court finds that permitting a voluntary dismissal in these circumstances would render the AOM statute and its underlying purpose meaningless. The minor's claim was pursued by her guardian ad litem and she was represented by counsel. The Legislature did not choose to carve out an exception for minors under the AOM statute as it has done with the statute of limitations in tort cases. 
Judge Fisher dissents, concluding that a trial judge should have the authority to exercise discretion and grant a voluntary dismissal, if appropriate, to preserve the future of a minor's malpractice action. He notes the protections afforded minors, including the equitable tolling of a minor's suit under the 

Wrongful Death Act and the process requiring judicial approval of settlement reached on behalf of minors, R. 4:44. He finds the minimal prejudice incurred by defendants can be addressed by the trial judge with the imposition of any terms necessary to alleviate that harm upon the re-filing of the complaint.