Kenneth Mr. Vercammen was included in the 2017 “Super Lawyers” list published by Thomson Reuters.

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

(732) 572-0500

Thursday, October 27, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. H.P AND V.P. IN THE MATTER OF H.P., JR., A.P. AND A.P. A-0642-10T1

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. H.P AND V.P.

IN THE MATTER OF H.P., JR., A.P. AND A.P. A-0642-10T1

Defendant appealed from an order that concluded he had abused or neglected his three children. The finding was rendered by the judge's consideration only of testimony taken at a hearing conducted the day the complaint was filed, at a time when defendant was present but not represented by counsel.

The court held that defendant's claim that the record considered when the finding of abuse/neglect was made was inadequate because he was not represented when the testimony was taken lacked merit because defendant was represented when he consented to the judge's reliance on that earlier testimony. The court reversed and remanded, however, because the judge made a finding of abuse/neglect by using the clear and convincing standard without providing defendant advance notice of that standard's use. In addition, the judge's findings consisted only of a summary of the testimony followed by a conclusion parroting the requirements of N.J.S.A. 9:6-8.21 without credibility determinations or an analysis of what the judge found had actually occurred. Absent greater clarity regarding this and other factual circumstances, the court was unable to conclude that the evidence was sufficient to meet the applicable preponderance standard even though the judge felt the higher clear and convincing burden had been met. 10-27-11

SUSAN D'ALESSANDRO VS. NORMAN & JUDITH HARTZEL, ET AL. A-3736-09T3

SUSAN D'ALESSANDRO VS. NORMAN & JUDITH HARTZEL, ET AL. A-3736-09T3

We granted summary judgment dismissal of plaintiff's negligence suit against the owner of short-term vacation rental property where plaintiff failed to offer expert proof that the condition of which she complained was dangerous or involved an unreasonable risk of physical harm to visitors, and where, in any event, the record indisputably demonstrated she knew or had reason to know of the claimed risk involved and, conversely, defendant had no reason to expect that plaintiff would not discover the obvious condition. 10-27-11

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. J.C. IN THE MATTER OF E.C. A-1269-10T4

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. J.C. IN THE MATTER OF E.C.

A-1269-10T4

Although we determined the appeal by defendant mother was moot, we reviewed the procedural requirements attached to protective services litigation proceeding pursuant to N.J.S.A. 30:4C-12, following the Division's dismissal of an action under Title Nine alleging abuse and neglect. 10-26-11

Saturday, October 22, 2011

PRINCETON HEALTHCARE SYSTEM VS. NETSMART NEW YORK INC. A-3533-10T4

PRINCETON HEALTHCARE SYSTEM VS. NETSMART NEW YORK INC. A-3533-10T4

A negotiated contract between corporations for the installation and implementation of a complex computer software system does not constitute a contract for the "sale of merchandise" that can provide the basis for a claim under the Consumer Fraud Act. 10-21-11

MINDY JACOBSON, ET AL. VS. UNITED STATES OF AMERICA ET AL. A-1605-10T1

MINDY JACOBSON, ET AL. VS. UNITED STATES OF AMERICA ET AL.

A-1605-10T1

We hold that the United States enjoys sovereign immunity from liability for damages arising from the Social Security Administration's failure to withhold disability benefits payments pursuant to a state child support garnishment order.

The Law Division granted summary judgment in favor of plaintiff, who sued individually and on behalf of her minor daughter, for whom child support was awarded, ordering the federal government to pay them compensatory damages, pre- judgment interest, and counsel fees and costs. We reverse and hold that plaintiff's claim is barred by sovereign immunity under 42 U.S.C.A. § 659. 10-18-11

LORRAINE GORMLEY VS. LATANY WOOD-EL, ET AL. A-3894-09T3

LORRAINE GORMLEY VS. LATANY WOOD-EL, ET AL. A-3894-09T3

Defendants appeal the interlocutory order denying their summary judgment motion seeking, on the basis of qualified immunity, dismissal of plaintiff's civil rights complaint. Plaintiff, an attorney, claimed defendants violated her substantive due process right under the Fourteenth Amendmentwhen they created and imposed serious risks of harm to her as she met with her client, a mental patient confined at Ancora. Plaintiff's client physically attacked her during the course of that meeting. The motion judge ruled whether defendants are entitled to qualified immunity is a question of fact for the trier of fact. We reversed, holding that the determination of whether defendants are entitled to qualified immunity is a question of law for the court.

We additionally held that the facts, as alleged, established a prima facie case of a state-created danger theory of liability under the Fourteenth Amendment, but nonetheless

concluded the right plaintiff

10-17-11

defendants were entitled to qualified immunity because asserted was not clearly established at the time was attacked. 10-18-11

REGINA BASKETT, ET AL. VS. KWOKLEUNG CHEUNG A-0755-10T4

REGINA BASKETT, ET AL. VS. KWOKLEUNG CHEUNG A-0755-10T4

In this appeal we address the 2008 amendments to Rule 1:13- 7. We hold that in single-defendant cases the standard for reinstatement of a complaint is good cause. In multi-defendant cases, reinstatement within ninety days of the prior dismissal is permitted on a showing of good cause, but thereafter a party must demonstrate exceptional circumstances to reinstate a complaint. Because this case involves only a single defendant, the standard is good cause, which we conclude was adequately demonstrated by the motion record in the Law Division.

STATE OF NEW JERSEY, ET AL. VS. CORRECTIONAL MEDICAL SERVICES, INC., ET AL. A-5575-09T2

STATE OF NEW JERSEY, ET AL. VS. CORRECTIONAL MEDICAL SERVICES, INC., ET AL.

A-5575-09T2

We conclude that the New Jersey False Claims Act, N.J.S.A. 1A:32C-1 to -15 and N.J.S.A. 2A32C-17 to -18, is not retroactively applicable to conduct prior to the Act's effective date, which was March 13, 2008. 10-11-11

ESTATE OF ALVINA TAYLOR VS. DIRECTOR, DIVISION OF TAXATION A-3501-09T3

ESTATE OF ALVINA TAYLOR VS. DIRECTOR, DIVISION OF TAXATION

A-3501-09T3

In this appeal, we affirm the decision of the Tax Court, published at 25 N.J. Tax 398 (Tax 2010), granting the Director, Division of Taxation, summary judgment dismissing the Estate's complaint with prejudice and denying an inheritance tax refund. In doing so, we agree with the Director's and Tax Court'sdecision that the three-year limitation on requesting inheritance tax overpayment refunds, set by N.J.S.A. 54:35-10, is enforceable; and the Square Corners Doctrine did not apply to the facts of this case so as to preclude application of N.J.S.A. 54:35-10. 10-6-11

ADVANCE HOUSING, INC., ET AL. VS. TOWNSHIP OF TEANECK, ET AL. A-0728-09T3

ADVANCE HOUSING, INC., ET AL. VS. TOWNSHIP OF TEANECK, ET AL.

A-0728-09T3

We reversed the Tax Court's denial of real property tax exemptions to charitable organizations which provide housing and supportive services to individuals with psychiatric disabilities. In interpreting N.J.S.A. 54:4-3.6, we determine that the motion judge erred in denying the exemptions on the basis that supportive services were also provided to residents of other housing and that the absence of a requirement that residents receive supportive services was not determinative when there was no issue of fact that all residents in fact participated in the services offered, which were integral to their ability to live independently in the housing provided. 10-4-11

MIDLAND FUNDING, LLC VS. ROSA GIAMBANCO A-1651-09T3

MIDLAND FUNDING, LLC VS. ROSA GIAMBANCO A-1651-09T3

In this appeal, we review a consent judgment in which the judgment-creditor waived notice under Rule 4:59-1(d) in the event of default upon the conditions of settlement incorporated into the consent judgment. The Law Division judge found certain provisions of the consent judgment contrary to public policy and struck the contrary provisions before otherwise approving the consent judgment.

We held that such consent judgments are not contrary to public policy, provided the judgment-debtor's waiver of notice under Rule 4:59-1(d) is knowing and informed. Because the proposed consent judgment was deficient in that it failed to advise the judgment-debtor of the nature and consequences of the waiver, we concluded the Law Division judge properly rejected the order as proposed. We additionally held where a court rejects the terms of a consent judgment, it may not, absent concurrence by all parties, strike the offending provisions and then approve the consent judgment as modified by the court. Rather, we concluded the court must return the matter to its pre-settlement status. 10-3-11

JERALD D. ALBRECHT VS. CORRECTIONAL MEDICAL SERVICES, ET AL. A-0605-10T4

JERALD D. ALBRECHT VS. CORRECTIONAL MEDICAL SERVICES, ET AL.

A-0605-10T4

We hold that the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29 only applies to health care facilities that have been duly "licensed as" such by the Department of Health and Senior Services. N.J.S.A. 2A:53A-26(j). Additionally, where a question is raised about the status of a defendant in a malpractice action as a licensed person or health care facility and demands production of a license, the person or entity seeking a dismissal for failure to provide an affidavit of merit pursuant to N.J.S.A. 2A:53A-29 must submit competent evidential proof of its licensure. Finally, we reject the claim of Correctional Medical Services that Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, 416 N.J. Super. 1, 26-27 (App. Div. 2010), and Nagim v. N.J. Dep't of Transit, 369 N.J. Super. 103, 109 (Law Div. 2003), should be extended to it because it has not established that it is a professional corporation whose shareholders are all licensed professionals. 09-30-11

SAMUEL TORTORICE, ET AL. VS. LYNNE VANARTSDALEN A-4260-09T1

SAMUEL TORTORICE, ET AL. VS. LYNNE VANARTSDALEN A-4260-09T1

This visitation dispute arises between plaintiffs, the child's paternal grandparents, and defendant, the child's maternal grandmother. Because a fit parent has a fundamental right to autonomy in child-rearing decisions, a grandparent who seeks a visitation order must show that visitation is necessary to avoid harm to the child. Defendant argues that because she is the child's "psychological parent," she enjoys the same right to autonomy and consequently, plaintiffs must satisfy an avoidance of harm standard before a visitation order may be entered. We hold that the status of "psychological parent" does not afford defendant such constitutionally mandated autonomy, that a best interest analysis applies to this dispute, and affirm the order granting visitation to plaintiffs. 09-30-11

ELIZABETH TYMCZYSZYN VS. COLUMBUS GARDENS, ET AL. A-3544-09T4

ELIZABETH TYMCZYSZYN VS. COLUMBUS GARDENS, ET AL. A-3544-09T4

Plaintiff slipped on ice and fell on the sidewalk abutting a multi-unit residential property owned and operated by the Hoboken Housing Authority. The trial court granted summary judgment to the Housing Authority. We reverse because plaintiff presented sufficient evidence to survive summary judgment under N.J.S.A. 59:4-2(a), establishing that the manner in which theHousing Authority removed snow and ice from the area in question could have created the dangerous condition that caused plaintiff's injury. In the alternative we find that, under N.J.S.A. 59:4-2(b), the Housing Authority was constructively on notice of the dangerous condition.

Applying Bligen v. Jersey City Housing Authority, 131 N.J. 129 (1993), we also hold the Housing Authority is not entitled to invoke the weather condition immunity in N.J.S.A. 59:4-7, or the common law immunity for snow-related activities under Miehl v. Darpino, 53 N.J. 49, 54 (1968). 09-30-11

BERTHA BUENO VS. BOARD OF TRUSTEES, ET AL. A-1690-09T2

BERTHA BUENO VS. BOARD OF TRUSTEES, ET AL. A-1690-09T2

We determined that appellant was entitled to a service retirement allowance retroactive to the effective date she sought a disability retirement allowance because regulation in effect at the time of her initial application did not prohibit her from changing her application pursuant to N.J.A.C. 17:3- 6.3(a) to one for a service retirement allowance while her petition for certification following our affirmance of the denial of a disability retirement allowance was still pending. The Board's practice of limiting such a conversion to the thirty-day period following its denial of a disability retirement allowance constituted a rule under Metromedia, Inc. v. Director, Division of Taxation, 97 N.J. 33, 331-32 (1984), that was not promulgated in accordance with the specific rulemaking procedures of the Administrative Procedures Act, N.J.S.A. 52:14B-1 to -15. 09-29-11

LORETTA DEBOARD VS. WYETH, INC., ET AL. DORA BAILEY, ET AL. VS. WYETH, INC., ET AL. A-6230-07T1;A-6251-07T1

LORETTA DEBOARD VS. WYETH, INC., ET AL. DORA BAILEY, ET AL. VS. WYETH, INC., ET AL. A-6230-07T1;A-6251-07T1 (CONSOLIDATED)

We affirm the orders of summary judgment entered Jamie Happas dismissing plaintiff's product liability claims arising from utilization of hormone replacement therapy, relying in our decision on the comprehensive opinion of Judge Happas, which will be published simultaneously. In that opinion, Judge Happas properly declined to extend our reasoning in McDarby v. Merck & Co., Inc., 401 N.J. Super. 10 (App. Div. 2008), appeal dismissed, 200 N.J. 282 (2009), to permit plaintiffs to overcome the presumption of the adequacy of FDA-approved warnings by demonstrating that further testing, if voluntarily undertaken, would have disclosed an increased risk from taking the drugs at issue. 09-29-11