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Saturday, August 30, 2008

Kotler v. National Railroad Passenger Corp.

08-29-08 Dmitriy Kotler v. National Railroad Passenger Corp.

In a personal injury suit brought by a railroad employee
under the Federal Employers' Liability Act (FELA), a plaintiff's
receipt of collateral source benefits is inadmissible unless
plaintiff "opens the door" on direct examination by referring to
such benefits in a manner affecting his/her credibility. We
conclude that plaintiff did not "open the door" to the admission
of such evidence. Therefore, defense counsel's elicitation of
collateral source benefits evidence on cross-examination of
plaintiff and comments on that evidence in summation constitute
grounds for reversal of the no-cause verdict.

NJ Dept. of Children and Families' Institutional Abuse

8-27-08 NJ Dept. of Children and Families' Institutional Abuse
Inv. Unit v. S.P.
A-2522-06T2; and
NJ Dept. of Children and Families' Institutional Abuse
Inv. Unit v. G.W.

1. In investigating allegations of abuse by school
personnel, the Institutional Abuse Investigation Unit (IAIU) of
the Department of Children and Families (DCF) must determine
whether the allegations are "substantiated" or "unfounded."
N.J.A.C. 10:129-1.3. In rendering an "unfounded" report, the
IAIU may express its concerns about "inappropriate" or
"unjustified" conduct by the staff member, but must do so based
upon facts that have been tested for accuracy or are clearly
corroborated. Such concerns cannot be based upon vague,
conflicting or otherwise inaccurate reports.

2. The IAIU is prohibited from pursuing the school
district to confirm or report its disciplinary or corrective
action against a staff member on whom the IAIU has rendered an
"unfounded" report. When a report is "unfounded," the school
district is not required to take any disciplinary or corrective
action against the staff member.

Lee v. First Union National Bank, Wachovia

8-27-08 Margaret Lee v. First Union National Bank, Wachovia
Bank, N.A., First Union Brokerage Services, Inc., and
Gregory Mack

Plaintiff alleged she paid an employee of First Union
National and First Union Brokerage Services $2,000 in cash for
purchase of shares of a mutual fund and that he did not deposit
the money into her brokerage account, which caused an overdraft
which First Union covered by taking money from her checking
account and selling some of the mutual fund units. Plaintiff's
complaint alleged violation of the Consumer Fraud Act (CFA) and
common law conversion.

The trial judge granted summary judgment to defendants,
holding that the CFA was not applicable to a sale of securities
and the count for misappropriation was barred by the two-year
statute of limitations under the Blue Act, N.J.S.A. 49:3-71(g).

We reversed on the following grounds: (1) The transaction
is not exempt from the CFA prohibition on deceptive sales
practices because the claim relates to misrepresentation as to
performance of services and not the nature or existence of the
security; (2) N.J.S.A. 49:3-71(g) is not applicable because the
gravaman of this count of the complaint concerns the unlawful
"taking, detaining, or converting of personal property," which
is subject to the six-year statute of limitations.

Strahan v. Jean M. Strahan

08-26-08 Michael A. Strahan v. Jean M. Strahan

In calculating child support for high income families, the
trial court must undertake a meaningful analysis of the
custodial parent's statement of the children's needs and make a
determination as to whether the expenses claimed by the
custodial parent are reasonable. We reiterate the "three pony
rule" in such cases; that is, "no child, no matter how wealthy
the parents, needs to be provided [with] more than three
ponies." Isaacson v. Isaacson, 348 N.J. Super. 560, 582 (App.
Div.), certif. denied, 174 N.J. 364 (2002) (quoting In re
Patterson, 920 P.2d 450, 455 (Kan. App. 1996)).

Burnett v. County of Bergen and Bergen County

08-22-08 Fred Burnett v. County of Bergen and Bergen County
Clerk's Office

In this Open Public Records Act (OPRA) case, we address the
question of whether the county clerk may redact social security
numbers (SSNs) from masses of realty documents requested for the
purpose of creating a commercial database to be accessed by
subscribers. OPRA requires the government custodian of the
requested records to redact that portion of the documents
disclosing SSNs unless the SSNs are part of a record "required
by law to be made, maintained or kept on file by a public
agency." N.J.S.A. 47:1A-5a. SSNs are included in recorded
realty documents as required by law.
08-19-08 Thomas Best v. C&M Door Controls

Plaintiff filed suit against his employer alleging causes
of action under the Prevailing Wage Act (PWA) and CEPA.
Defendant made a pre-trial offer of judgment in the amount of
$25,000, which was not accepted, and trial commenced. The jury
returned a verdict of $2,600 in plaintiff's favor on the PWA
claim, and a verdict of no cause on the CEPA claim. After the
verdict was returned, but prior to each side making its request
for counsel fees and costs, the Supreme Court's amendments to
the offer of judgment Rule (the Rule) became effective.

Plaintiff sought counsel fees as a prevailing party under
the PWA's fee-shifting provision. Defendant sought counsel fees
under CEPA's "frivolous litigation" provision, as well as the

We concluded that defendant was not entitled to fees under
CEPA. We then concluded that the amended version of the Rule
applied because it was in effect when defendant made application
for its "allowances" under the Rule. As amended, the Rule
permits the trial judge to deny an allowance to a non-claimant
even if it obtained a "favorable" result if such an award
"conflicts" with the underlying policy of the fee-shifting
statute at issue.

We determined that an award to the defendant employer under
the Rule did not conflict with policies supporting the PWA, but
did conflict with the policies supporting CEPA. We remanded the
matter to the trial court to further consider defendant's
application under the Rule.

We also remanded the matter so that the trial judge could
reconsider his award to plaintiff, and limit the award to that
time reasonably spent in prosecuting plaintiff's PWA claim.

In concurring, Judge Stern did not necessarily agree that
the amended version of the Rule should apply, but nonetheless
reached the same result under the version of the Rule in
existence when the offer was made and the trial occurred.
Furthermore, while he agreed that the "policy embodied" in the
PWA is different than that "embodied in other fee-shifting
statutes," he believed the Rule "might well be inapplicable when
plaintiff prevails in a case commenced under another fee-
shifting statute."

Ibrahim v. Reda M. Aziz

08-19-08 Mary L. Ibrahim v. Reda M. Aziz

When calculating child support, the trial court erred in
imputing income based on New Jersey wages to a parent who was
living and working in a foreign country where wages were
dramatically less than here. The family had been living in the
foreign country and was visiting New Jersey when the parents
separated. The father then returned to the foreign country and
was unable to obtain a visa to come back to the United States.
His child support payment should have been based on what he
could earn in the foreign country.

Tuesday, August 12, 2008

Pizzullo v. New Jersey Manufacturers Insurance Company

8-7-08 Pizzullo v. New Jersey Manufacturers Insurance Company

Under the unique factual record of this case, which demonstrates
that the Pizzullos requested certain coverage and New Jersey
Manufacturers promised to provide that coverage but then failed
to do so, New Jersey Manufacturers is not entitled to immunity
from suit under N.J.S.A. 17:28-1.9(a).

Simmermon v. Dryvit Systems, Inc

8-11-08 Simmermon v. Dryvit Systems, Inc. (A-55-07)

A Tennessee court is the proper forum to address whether James
Simmermon received sufficient notice of the nationwide class
action against Dryvit Systems, Inc., and whether prosecuting an
individual suit against Dryvit in New Jersey constituted an
effective opt-out of the class action. Only if a Tennessee
court decides that Simmermon is not bound by the class action
settlement may he proceed with his New Jersey action. However,
because it violated Rule 4:5-1(b)(2), Dryvit will be responsible
for Simmermon’s litigation expenses, including attorneys’ fees.

Attorney General's "Directive on Exit Polling:

8-06-08 In Re: Attorney General's "Directive on Exit Polling:
Media & Non-Partisan Public Interest Groups," Issued
July 18, 2007

We uphold the validity of the Attorney General's Directive
dated July 18, 2007, permitting non-partisan public interest
groups to conduct exit polling within 100 feet of the outside
entrance to a polling place but prohibiting the distribution by
such non-partisan public interest groups within that same 100-
foot area of any materials such as voters' rights cards.

Angrisani v. Financial Technology Ventures,

8-07-08 Frank Angrisani v. Financial Technology Ventures,
L.P., et al.

A party can be forced to arbitrate only those issues it has
specifically agreed to arbitrate. Therefore, where plaintiff
contemporaneously entered into an employment agreement, which
contained a provision for arbitration of disputes between
plaintiff and the employer, and an agreement with investors for
the purchase of stock in the employer, which did not contain any
arbitration provision, plaintiff cannot be forced to arbitrate
claims against the investors based on the stock purchase

Harvey, et al. v. Township of Deptford

08-08-08 George Harvey, et al. v. Township of Deptford

Plaintiff, a towing operator, sought mandamus against the
defendant municipality, compelling the public auction or removal
of vehicles he had towed and stored at the municipality's
request. He also sought monetary damages caused by the
municipality's failure to conduct public auctions within the
time limits contained in N.J.S.A. 39:10-A-1 to -7, and the
storage of the towed vehicles on his property. The trial judge
granted plaintiff partial summary judgment on liability, but
limited his monetary damages to $400 per vehicle, finding
N.J.S.A. 40:48-2.50 applicable to limit the municipality's
We affirmed. We conclude that N.J.S.A. 40:48-2.50
expressly limits the amount that a towing operator may recover
against the municipality for the storage of vehicles towed at
the municipality's request. We further conclude that plaintiff
has no express or implied cause of action for monetary damages
based upon the municipality's violation of the time limits set
forth in N.J.S.A. 39:10A-1 to -7, and has no claim for monetary
damages as a corollary to his mandamus action.

Sebastian Fernandez v. Nationwide Mutual Fire

08-12-08 Sebastian Fernandez v. Nationwide Mutual Fire
Insurance Company

The issue presented on appeal is whether a PIP carrier's
right to reimbursement for paid PIP benefits, pursuant to
N.J.S.A. 39:6A-9.1, has priority over an insured's right to be
made whole where the tortfeasor's insurance does not fully cover
the insured's personal injury damages. We concluded that the
decisions of Knox v. Lincoln Gen. Ins. Co., 304 N.J. Super. 431
(App. Div. 1997) and IFA Ins. Co. v. Waitt, 270 N.J. Super. 621
(App. Div.), certif. denied, 136 N.J. 295 (1994) are not in
conflict, but rather address different issues under the PIP
reimbursement statute. We determined that the issue presented
is controlled by Knox and held: that where a PIP carrier has
paid benefits to its insured, it is entitled to reimbursement of
those benefits from the insurance proceeds of a third-party
tortfeasor, pursuant to N.J.S.A. 39:6A-9.1, even if the limits
of the tortfeasor's insurance policy are insufficient to make
the insured whole.

Wednesday, August 6, 2008

In Re: Attorney General's "Directive on Exit Polling: Media & Non-Partisan Public Interest Groups," Issued July 18, 2007

08-06-08 A-0543-07T1

We uphold the validity of the Attorney General's Directive dated July 18, 2007, permitting non-partisan public interest groups to conduct exit polling within 100 feet of the outside entrance to a polling place but prohibiting the distribution by such non-partisan public interest groups within that same 100-foot area of any materials such as voters' rights cards.

Editor, Mitch Zuckerman

Dyana M. Espina v. Board of Review, New Jersey Department of Labor and Keybank National Association

08-01-08 A-3780-06T3

Pursuant to N.J.A.C. 12:17-9.11(b), an employee cannot be deemed to have abandoned her employment by failing to return to
work, until the expiration of five consecutive days from the last day of an approved leave of absence. Thus, claimant is not
disqualified for benefits as a "voluntary quit."

Felipe Hernandez v. Carmen Baugh

07-30-08 A-5752-06T2

Plaintiff sued defendant for legal malpractice in connection with his purchase, with his uncle, of a business. The uncle then removed plaintiff from the business; plaintiff sued his uncle and settled that litigation under a settlement agreement stating the settlement was "fair and reasonable . . . taking into account all relevant factors." The trial court dismissed plaintiff's malpractice action on the basis of Puder v. Buechel, 183 N.J. 428 (2005). We reversed, finding Puder distinguishable. Defendant's alleged malpractice was one of the relevant factors behind plaintiff's decision to settle the earlier litigation on the terms he did.

James Feigenbaum, et al. v. Frank Guaracini, Jr., et als.

07-29-08 A-0338-06T5

The question presented on appeal is whether a tenant's assignee can be held liable under the doctrine of equitable subrogation to the guarantor of the original tenant's obligation under the lease, for monies paid by the guarantor in settlement of the landlord's claim for damages on default of the lease, where the assignee did not have knowledge of the guaranty contract. We answered the question in the negative. In the opinion, we examined the principles governing contracts of indemnification, guaranty, and suretyship.

Ronald Jamgochian v. New Jersey State Parole Board

8-6-08 (A-63-07)

A community-supervised-for-life offender, who, for some time, has been released into the community, must be afforded due
process of law before the Parole Board can impose a curfew confining the offender to his home. The level of process will depend on a number of variables and the unique circumstances of each case. At a minimum, a supervised offender must be provided
reasonable notice and a meaningful opportunity to be heard.

Blase Toto, et al. v. Sheriff’s Officer Rolando Ensuar, et al.

8-4-08 (A-53-07)

When a public employee’s actions constitute willful misconduct, the plaintiff need not satisfy the verbal threshold of the New
Jersey Tort Claims Act and may instead recover the full measure of damages applicable to a person in the private sector. The
trial court’s failure to give that instruction to the jury was error. The failure to instruct the jury that the good faith defense incorporated into the Act does not apply to claims for false arrest or false imprisonment also was error and the error was clearly capable of producing an unjust result.

Beth Godfrey, et al. v. Princeton Theological Seminary

8-4-08 (A-64-07)

Plaintiffs’ case fell short of the proofs necessary to state a hostile work environment claim based on sexual harassment because they failed to satisfy the severe-or-pervasive prong of the test set forth in Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993). The Appellate Division majority correctly affirmed the trial court’s involuntary dismissal of the claims.

Jason Cutler v. Theodore Dorn

7-31-08 (A-51-07)

The threshold for demonstrating a religion-based, discriminatory hostile work environment is no more stringent than the theshold that applies to sexually or racially hostile workplace environment claims. Here, plaintiff’s case satisfied the standards for a hostile work environment claim to warrant, and subsequently uphold, a jury determination.

New Jersey Society for the Prevention of Cruelty to Animals, v. New Jersey Department of Agriculture, et. al.

7-30-08 (A-27-07)

The facial challenge to the regulations in their entirety is rejected. The Department of Agriculture, however, failed, in part, to carry out its mandate. The specific challenges to the reliance on “routine husbandry practices” as defined in the regulations, and to the reliance on “knowledgeable individual and in such a way as to minimize pain” are sustained. The specific challenges to the practices, with the exception of the practice of tail docking, are otherwise rejected.