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Monday, January 31, 2011

G.D. v. Bernard Kenny and The Hudson County Democratic Organization, Inc. (A-85-09)

G.D. v. Bernard Kenny and The Hudson County Democratic Organization, Inc. (A-85-09)

Defendants in this case were entitled to assert truth as a defense to the defamation and other related tort actions, even though G.D.’s conviction was subject to an expungement order. In addition, G.D. failed to establish that the flyers were not substantially accurate. Moreover, G.D. had no reasonable expectation of privacy that information so long in the public domain before the entry of the expungement order would be erased from the public’s mind or from papers already widely disseminated.

ALLSTATE NEW JERSEY INSURANCE COMPANY VS. NEUROLOGY PAIN ASSOCIATES a/s/a MARIANNE TUBELIS, ET AL. A-3104-09T2

ALLSTATE NEW JERSEY INSURANCE COMPANY VS. NEUROLOGY PAIN ASSOCIATES a/s/a MARIANNE

TUBELIS, ET AL. A-3104-09T2 1-31-11

The National Arbitration Forum, which has been designated by the Commissioner of Banking and Insurance to administer arbitration proceedings relating to PIP benefits, has the "interest" required to intervene as of right under Rule 4:33-1 in an action that seeks judicial review of an intermediate ruling by a NAF administrator in order to argue that the court lacks jurisdiction. The rules and regulations adopted by the Commissioner of Banking and Insurance to govern PIP arbitration proceedings do not incorporate the section of the Alternative

Procedure review of forum.

MOSES SEGAL VS. CYNTHIA LYNCH A-2134-09T3

MOSES SEGAL VS. CYNTHIA LYNCH A-2134-09T3

prevailing party, and under the retainer agreement, a coordinator was properly paid for the time spent in a party's grievances filed against her and reporting

that response to the court which were found by the court to be without merit. The fees sought by the parenting coordinator were in her role as a parenting coordinator and not as an attorney pro se.

Under the Guidelines of the Pilot Parenting Coordinator Program, the court was not required upon request to hold a hearing on a party's grievances, but it was left to the discretion of the court. Where, as here, there were no material issues of disputed fact, the court was well within its discretion not to hold a hearing. It was not inappropriate to test the merits of the grievances by utilizing the summary judgment model.

Likewise, the court was not required to hold a hearing on the amount of the payment to be made to the parenting coordinator for the services performed.

JOHN SIMMONS, ET AL. VS. LARRY LOOSE, ET AL. A-6382-08T3

JOHN SIMMONS, ET AL. VS. LARRY LOOSE, ET AL. A-6382-08T3 01-31-11 In this appeal, we conclude that an innocent property owner is not entitled to compensation under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, as well as 42 U.S.C.A. § 1983 (section 1983), or in the alternative, just compensation from the State under the Fifth and Fourteenth Amendments of the United States Constitution and Article I, paragraph 20 to the New Jersey Constitution when property damage occurs as a result of the execution of a lawful search warrant. While we recognize that innocent third-parties suffered damages as a result of lawful government action, we conclude that such loss is not a "taking" under either the federal or state constitutions, and the proper remedy must result from legislative action to provide relief.

WELLS FARGO BANK, N.A. VS. SANDRA A. FORD A-3627-06T1

WELLS FARGO BANK, N.A. VS. SANDRA A. FORD A-3627-06T1 01-28-11

To establish standing to foreclose upon a mortgage, a party must demonstrate by competent evidence that it owns or controls

the underlying debt secured by the mortgage. The right to enforcement of a debt evidenced by a negotiable instrument governed by the UCC. The determination whether a "holder" negotiable instrument is a "holder in due course," who can defenses that would be available in an action by the original payee, depends on that party's knowledge of those defenses at the time of indorsement of the note.

S.Z. VS. M.C. A-3841-09T2

S.Z. VS. M.C. A-3841-09T2 01-26-11

We reverse the trial court and find jurisdiction under the "household member" provision of the Prevention of Domestic Violence Act in a situation where the male defendant was a guest in the male plaintiff's home, living with plaintiff and his wife and children for seven months. While living with plaintiff, defendant allegedly climbed a ladder placed against the home to peep through a window at plaintiff coming out of the shower. Ten months after being thrown out of the home, defendant allegedly followed plaintiff and planted a secret camera in plaintiff's truck to surreptitiously record him. Although the two men never had a traditional familial, romantic or sexual relationship, we find that neither the incompatible sexual orientations of the two men nor the timeframes involved defeat jurisdiction.

JEFFREY MARRERO, ET AL. VS. HOWARD FEINTUCH, ESQUIRE, ET AL. A-5879-09T3

JEFFREY MARRERO, ET AL. VS. HOWARD FEINTUCH, ESQUIRE, ET AL.

A-5879-09T3 01-25-11

We reviewed an order quashing a subpoena for deposition testimony in this professional negligence action against criminal defense counsel. Plaintiff's conviction was reversed on appeal and the State declined to pursue retrial. Defendants anticipated the proffered witness's testimony would challenge plaintiff's alibi and possibly implicate him in the criminal offense, disproving the claimed negligent representation.

We settled a question first discussed in McKnight v. Office of Pub. Defender, 397 N.J. Super. 265, 267 (App. Div. 2007), rev'd., 197 N.J. 180 (2008), by holding a plaintiff need not prove actual innocence of criminal charges as a prerequisite to pursue legal malpractice claims against former criminal defense counsel. However, we concluded this would not necessarily preclude defendants' pursuit of evidence relevant to defend the malpractice claims. In view of the sweeping nature of our discovery rules designed to ensure, with few exceptions, the ability to obtain all relevant facts before trial, we reversed the order quashing the subpoena as unwarranted, representing a misguided exercise of discretion.

01-24-11 PAUL PORRECA V. CITY OF MILLVILLE A-1185-09T1

We address whether plaintiff is entitled to a counsel fee award pursuant to Rule 4:42-9(a)(2) ("fund in court") following settlement of his prerogative writs litigation seeking watchdog relief from the City, where the agreement did not mention attorney's fees. We hold plaintiff has a viable claim for such fees under Henderson v. Camden County Municipal Utilities Authority, 176 N.J. 554 (2003), because he obtained "a tangible economic benefit" for the taxpayers. We view this Rule as encompassing a two-step process: (1) the court must determine as a matter of law whether plaintiff is entitled to seek such award under the Rule and (2) if plaintiff has met the threshold, the court has the discretion to award the amount, if any, it concludes is a reasonable fee under the totality of the facts.

We also decline to engraft the bright-line federal rule that a prevailing party's claim for such fees will survive unless specifically and expressly waived in the settlement agreement to a counsel fee request not premised on a fee- shifting statute.We reverse and remand.

BARR V. BARR A-1389-09T2

BARR V. BARR A-1389-09T2 1-19-11

We reversed the Family Part's post-judgment order regarding the distribution of defendant's military pension, concluding a plenary hearing was necessary to determine whether defendant's post-judgment, pre-retirement promotion resulted in demonstrable increases to the pension excludable from plaintiff's equitable distribution interest because they resulted from defendant's separate post-divorce work efforts.

Friday, January 21, 2011

1:4-8. Frivolous Litigation

1:4-8. Frivolous Litigation

  • (a) Effect of Signing, Filing or Advocating a Paper. The signature of an attorney or pro se party constitutes a certificate that the signatory has read the pleading, written motion or other paper. By signing, filing or advocating a pleading, written motion, or other paper, an attorney or pro se party certifies that to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

    • (1) the paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

    • (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

    • (3) the factual allegations have evidentiary support or, as to specifically identified allegations, they are either likely to have evidentiary support or they will be withdrawn or corrected if reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support; and

    • (4) the denials of factual allegations are warranted on the evidence or, as to specifically identified denials, they are reasonably based on a lack of information or belief or they will be withdrawn or corrected if a reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support.

      If the pleading, written motion or other paper is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though the document had not been served. Any adverse party may also seek sanctions in accordance with the provisions of paragraph (b) of this rule.

  • (b) Motions for Sanctions.

    • (1) Contents of Motion, Certification. An application for sanctions under this rule shall be by motion made separately from other applications and shall describe the specific conduct alleged to have violated this rule. No such motion shall be filed unless it includes a certification that the applicant served written notice and demand pursuant to R. 1:5-2 to the attorney or pro se party who signed or filed the paper objected to. The certification shall have annexed a copy of that notice and demand, which shall (i) state that the paper is believed to violate the provisions of this rule, (ii) set forth the basis for that belief with specificity, (iii) include a demand that the paper be withdrawn, and (iv) give notice, except as otherwise provided herein, that an application for sanctions will be made within a reasonable time thereafter if the offending paper is not withdrawn within 28 days of service of the written demand. If, however, the subject of the application for sanctions is a motion whose return date precedes the expiration of the 28-day period, the demand shall give the movant the option of either consenting to an adjournment of the return date or waiving the balance of the 28-day period then remaining. A movant who doesnot request an adjournment of the return date as provided herein shall be deemed to have elected the waiver. The certification shall also certify that the paper objected to has not been withdrawn or corrected within the appropriate time period provided herein following service of the written notice and demand.

      No motion shall be filed if the paper objected to has been withdrawn or corrected within 28 days of service of the notice and demand or within such other time period as provided herein.

    • (2) Time for Filing; Attorney's Fees. A motion for sanctions shall be filed with the court no later than 20 days following the entry of final judgment. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorneys' fees incurred in presenting or opposing the motion. For purposes of this rule, the term "final judgment" shall include any order deciding a post-judgment motion whether or not that order is directly appealable.

    • (3) Scope of Responsibility. Except in extraordinary circumstances, a law firm shall be jointly responsible for violations committed by its partners, shareholders, associates and employees.

  • (c) Sanction on Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate this rule and directing the attorney or pro se party to show cause why he or she has not violated the rule. The order to show cause shall issue before a voluntary dismissal or settlement of the claims made by or against the pro se party or the attorney who is the subject of the order to show cause.

  • (d) Order for Sanctions. A sanction imposed for violation of paragraph (a) of this rule shall be limited to a sum sufficient to deter repetition of such conduct. The sanction may consist of (1) an order to pay a penalty into court, or (2) an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation, or both. Among the factors to be considered by the court in imposing a sanction under (2) is the timeliness of the movant's filing of the motion therefor. In the order imposing sanctions, the court shall describe the conduct determined to be a violation of this rule and explain the basis for the sanction imposed.

  • (e) Exceptions. This rule does not apply to disclosures and discovery requests, responses, objections, and discovery motions that are subject to the provisions of R. 4:23.

  • (f) Applicability to Parties. To the extent practicable, the procedures prescribed by this rule shall apply to the assertion of costs and fees against a party other than a pro se party pursuant to N.J.S.A. 2A:15-59.1.

2A:15-59.1. Frivolous causes of action attorney fees

2A:15-59.1. Frivolous causes of action
1. a. (1) A party who prevails in a civil action, either as plaintiff or defendant, against any other party may be awarded all reasonable litigation costs and reasonable attorney fees, if the judge finds at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim or defense of the nonprevailing person was frivolous.

(2) When a public entity is required or authorized by law to provide for the defense of a present or former employee, the public entity may be awarded all reasonable litigation costs and reasonable attorney fees if the individual for whom the defense was provided is the prevailing party in a civil action, and if there is a judicial determination at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim, or defense of the nonprevailing party was frivolous.

b. In order to find that a complaint, counterclaim, cross-claim or defense of the nonprevailing party was frivolous, the judge shall find on the basis of the pleadings, discovery, or the evidence presented that either:

(1) The complaint, counterclaim, cross-claim or defense was commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury; or

(2) The nonprevailing party knew, or should have known, that the complaint, counterclaim, cross-claim or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

c. A party or public entity seeking an award under this section shall make application to the court which heard the matter. The application shall be supported by an affidavit stating in detail:

(1) The nature of the services rendered, the responsibility assumed, the results obtained, the amount of time spent by the attorney, any particular novelty or difficulty, the time spent and services rendered by secretaries and staff, other factors pertinent in the evaluation of the services rendered, the amount of the allowance applied for, an itemization of the disbursements for which reimbursement is sought, and any other factors relevant in evaluating fees and costs; and

(2) How much has been paid to the attorney and what provision, if any, has been made for the payment of these fees in the future.

Monday, January 17, 2011

OCEANSIDE CHARTER SCHOOL V. NEW JERSEY STATE DEPARTMENT OF EDUCATION OFFICE OF COMPLIANCE INVESTIGATION A-2528-09T2

OCEANSIDE CHARTER SCHOOL V. NEW JERSEY STATE DEPARTMENT OF EDUCATION OFFICE OF COMPLIANCE INVESTIGATION A-2528-09T2

Where a federal grant recipient fails to comply with N.J.S.A. 18A:18A-4 and N.J.S.A. 18A:18A-5 of the Public School Contracts Law, the decision of the Commissioner of the Department of Education ordering repayment of such grant funds is neither arbitrary nor capricious. 1-14-11

MORRIS COUNTY SHERIFF'S OFFICE AND COUNTY OF MORRIS V. MORRIS COUNTY POLICEMEN'S BENEVOLENT ASSOCIATION, LOCAL 298 A-3174-09T3

MORRIS COUNTY SHERIFF'S OFFICE AND COUNTY OF MORRIS V. MORRIS COUNTY POLICEMEN'S BENEVOLENT ASSOCIATION, LOCAL 298 A-3174-09T3

The Morris County Sheriff's Office unilaterally implemented —— without collective negotiations —— a change in its staff's work schedule to eliminate premium payments for working nonoperational posts on holidays. We reverse the finding of unfair labor practices by the Public Employment Relations Commission, which determined that such implementation was mandatorily negotiable and was enjoined by N.J.S.A. 34:13A-21 during the pendency of interest arbitration. 01-13-11

LARRY PRICE V. HUDSON HEIGHTS DEVELOPMENT, ET. AL. A-1527-09T2

LARRY PRICE V. HUDSON HEIGHTS DEVELOPMENT, ET. AL. A-1527-09T2

Despite successfully challenging a zoning board's approval of a developer's application to construct a 96-residential unit structure in Union City's mixed residential zone, plaintiff, a local resident and taxpayer, nevertheless appeals because dissatisfied with the Law Division's rationale, not its final result. Lacking the requisite adversity and genuineness of controversy, and because appeals are taken from judgments and not opinions, we dismissed the appeal for want of jurisdiction. 01-13-11

DYFS V. M.D. and S.D., I/M/O N.D., S.D., and G.D. A-2419-09T4

DYFS V. M.D. and S.D., I/M/O N.D., S.D., and G.D. A-2419-09T4

While in the midst of a contentious divorce and bitter custody dispute, defendant/mother entered a stipulation at a fact-finding hearing in this Title Nine litigation. She admitted using her oven and stove to heat her home while herchildren were present. The record revealed, however, that at the time, defendant's husband, also a defendant in the Title Nine litigation, was in arrears of his child support payments and had refused to make repairs to the furnace in the marital home. Based upon her admission, the judge entered an order finding that defendant had abused/neglected her children.

On appeal, defendant, among other things, argued that her attorney did not provide her with effective assistance. We concluded that defendant established her attorney provided ineffective assistance at the fact-finding hearing. We noted, for example, that neither the attorney nor the judge ever advised defendant that by entering the stipulation, she was admitting to abuse/neglect under Title Nine and the consequences of such a finding. Indeed, the words "abuse" or "neglect" were never used during the entire proceeding. We further determined that given the totality of the circumstances presented at the time of the fact-finding hearing, defendant had established her claim and there was no need to remand the matter for an evidential hearing.

We also noted the frequency with which similar issues regarding stipulations at fact-finding hearings arise on appeal. We now require that the judge conduct a specific inquiry of a defendant who intends to enter a stipulation, similar to the line of inquiry posed to a criminal defendant who enters a guilty plea, to ensure that the defendant is voluntarily and knowingly waiving those rights available at a fact-finding hearing.

We also suggest that the Committee on Practice in the Family Part and the Administrative Office of the Courts implement the use of a form, similar to the one now being used in cases in which a parent agrees to a voluntary surrender, in all cases in which a defendant is stipulating to a finding of abuse and neglect. 1-12-11

TRIFFIN v. LICCARDI FORD, INC., d/b/a THE CAR GIANT A-1849-09T1

TRIFFIN v. LICCARDI FORD, INC., d/b/a THE CAR GIANT A-1849-09T1

Robert J. Triffin purchased a dishonored check from a check cashing service and sued the issuer to collect on the check. Because the check was post-dated, and the check cashing service from which Triffin purchased it had made payment in violation of the Check Cashers Regulatory Act of 1993, N.J.S.A. 17:15A-47c, we held that the service was not a holder in due course. Therefore, Triffin took the check subject to the issuer'sdefense that the check was stolen, and his complaint was properly dismissed. 1-12-11

PEREZ V. FARMERS MUTUAL FIRE INSURACE CO. AND ENCOMPASS PROPERTY & CASUALTY INSURANCE CO. A-0490-09T3

PEREZ V. FARMERS MUTUAL FIRE INSURACE CO. AND ENCOMPASS PROPERTY & CASUALTY INSURANCE CO. A-0490-09T3 1-11-11

A fifteen-passenger van owned by a church, which the church used to transport members of its congregation to services, does not fall within the definition of an "automobile" contained in N.J.S.A. 39:6A-2, thus requiring the van's insurer to provide coverage for PIP benefits, because such a vehicle must be "owned by an individual or by a husband and wife who are residents of the same household" to be an "automobile" under the statutory definition.

NEW JERSEY MANUFACTURERS INSURANCE GROUP v. HOLGER TRUCKING CORPORATION A-0365-09T3

NEW JERSEY MANUFACTURERS INSURANCE GROUP v. HOLGER TRUCKING CORPORATION

A-0365-09T3 1-07-11

N.J.S.A. 39:6A-9.1 requires that an insurer, which has provided personal injury protection (PIP) benefits, must commence suit for reimbursement from a tortfeasor within two years of "the filing of the claim." In this appeal, the court recognized that this phrase was ambiguous and held, in interpreting the statute, that "the filing of the claim" is an insured's submission of a completed claim form to the insurer and not the first notice of the accident or either the first or last request for payment of a medical bill.

Hopewell Valley Citizens’ Group, Inc. v. Berwind Property Group Development Co., et al. (A-83-09)

Hopewell Valley Citizens’ Group, Inc. v. Berwind Property Group Development Co., et al. (A-83-09)

The circumstances presented in this case satisfy the standards in Rule 4:69-6(c) and warrant enlargement of the forty-five-day period because “it is manifest that the interest of justice so requires.”