New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htmKenneth Mr. Vercammen was included in the 2017 “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

visit Website www.njlaws.com

Kenneth Vercammen & Associates, P.C.

2053 Woodbridge Avenue - Edison, NJ 08817

(732) 572-0500

Saturday, December 29, 2012

Preparing for the Criminal and Traffic Case

video

Preparing for the Criminal and Traffic Case

FRANCIS CHIARELLO VS. BOARD OF TRUSTEES, PUBLIC EMPLOYEES RETIREMENT SYSTEM A-1199-11T1


FRANCIS CHIARELLO VS. BOARD OF TRUSTEES, PUBLIC
EMPLOYEES RETIREMENT SYSTEM
A-1199-11T1
Appellant sought an ordinary disability retirement from one
PERS position with the intention to retain an elected office,
another PERS position, in reliance on N.J.S.A. 43:15A-47.2,
which authorized a multiple PERS member's retention of an
elected office upon retirement from another PERS position. The
court held, among other things, that appellant was not required
to terminate his mayoral position even though N.J.S.A. 43:15A-
47.2 was repealed before his retirement application was ruled
upon. The court reasoned that simple fairness and the principle
that favors prospective application of statutes required that
appellant's eligibility to retain his position as mayor should
be governed by the laws existing at the time of the application,
particularly when appellant applied for a disability retirement
four months before the repeal. The court, however, remanded for
a determination of whether appellant could be totally and
permanently disabled from one position without being similarly
disabled from the other. 12-20-12 

L & W SUPPLY CORPORATION D/B/A BUILDING SPECIALTIES VS JOE DESILVA T/D/B/A DESILVA CONTRACTORS, ET AL. A-2960-10T2


 L & W SUPPLY CORPORATION D/B/A BUILDING SPECIALTIES VS
JOE DESILVA T/D/B/A DESILVA CONTRACTORS, ET AL.
A-2960-10T2
The Construction Lien Law, N.J.S.A. 2A:44A-1 to -38, and
Craft v. Stevenson Lumber Yard, Inc., 179 N.J. 56, 63 (2004),
impose an obligation upon a materials supplier that files a
construction lien to show that it applied payments correctly
against several open accounts of a contractor that purchased
materials for different building jobs. This opinion elaborates
upon that obligation and holds that, when the contractor has not
provided specific, reliable instructions as to the allocation of
its payment based on the source of the payment funds, or when a
reasonable supplier should suspect that the contractor has not
used an owner's funds to pay for materials supplied for that
owner, then the supplier must make further inquiry and attempt
to verify the source of the payment funds so that it can
allocate them to the correct accounts. 12-19-12

Monday, December 10, 2012

STEPHEN E. BURKE VS. RAYMOND BRANDES, ET AL. A-3051-11T3


STEPHEN E. BURKE VS. RAYMOND BRANDES, ET AL.
          A-3051-11T3
Reversing the Law Division, we held that a request of the Governor's Office for records concerning EZ Pass benefits afforded to retirees of the Port Authority, including correspondence between the Office of the Governor and the Port Authority, was not "overbroad" under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.  12-07-12  

IN THE MATTER OF THE VETO BY GOVERNOR CHRIS CHRISTIE OF THE MINUTES OF THE NEW JERSEY RACING COMMISSION FROM THE JUNE 29, 2011 MEETING AND THE ALLOCATION ACTION TAKEN AT THAT MEETING BY THE NEW JERSEY RACING COMMISSION A-6028-10T3


IN THE MATTER OF THE VETO BY GOVERNOR CHRIS CHRISTIE OF THE MINUTES OF THE NEW JERSEY RACING COMMISSION FROM THE JUNE 29, 2011 MEETING AND THE ALLOCATION ACTION TAKEN AT THAT MEETING BY THE NEW JERSEY RACING COMMISSION
A-6028-10T3
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The Thoroughbred Breeders' Association of New Jersey (the TBA) appealed from Governor Chris Christie's veto of the minutes of a meeting of the New Jersey Racing Commission. The Commission decided to distribute $15 million collected by the Casino Redevelopment Authority (CRDA) for the purpose of augmenting "purse monies" at New Jersey racing venues. The TBA challenged the constitutionality of the legislative scheme, adopted as part of the creation of the Atlantic City Tourism District, that expressly permitted the Commission to request the monies for this purpose and the CRDA to distribute them, but, at the same time, preserved the Governor's power to veto the Commission's minutes, thereby rendering any action taken null and void.
We examined the various constitutional arguments made by the TBA and rejected them.
The TBA also argued that, even if the legislative scheme was constitutional and the Governor's veto permissible, his action was arbitrary, capricious and unreasonable. We concluded that our usual standard of review applicable to executive agency action did not apply to the discretionary actions of the Governor pursuant to an express legislative grant. 12-07-12

ENID SANTIAGO VS. NEW YORK & NEW JERSEY PORT AUTHORITY, ET AL. A-5773-10T1


ENID SANTIAGO VS. NEW YORK & NEW JERSEY PORT
          AUTHORITY, ET AL.
A-5773-10T1
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Plaintiff, a provisional police officer with the Port Authority Police Department, was terminated after what, she alleged, was a sham internal affairs investigation. She alleged violations of the LAD, CEPA and the Civil Rights Act (CRA). The judge dismissed the complaint, finding lack of subject matter jurisdiction based upon plaintiff's failure to provide notice prior to filing suit as required by N.J.S.A. 32:1-163 (requiring sixty days notice prior to filing suit).
Plaintiff argued that because New Jersey and New York adopted "complimentary" legislation addressing workplace discrimination and whistleblowing, and because no notice was required under New Jersey's Tort Claims Act prior to filing suit under the LAD, CEPA or the CRA, she need not have provided pre- suit notice to the Port Authority.
We affirmed. Without reaching a conclusion as to plaintiff's "complimentary" legislation argument, we decided that the Port Authority's waiver of sovereign immunity and limited consent to suit was expressly conditioned on pre- litigation notice. Given the failure to provide such notice, the court lacked subject matter litigation, regardless of the nature of plaintiff's claims. 12-05-12  

FRANK R. CIESLA O/B/O THE VALLEY HOSPITAL VS. NEW JERSEY DEPARTMENT OF HEALTH AND SENIOR SERVICES, ET AL. A-5309-10T1


FRANK R. CIESLA O/B/O THE VALLEY HOSPITAL VS. NEW JERSEY
          DEPARTMENT OF HEALTH AND SENIOR SERVICES, ET AL.
          A-5309-10T1
We affirm the Government Records Council's ("GRC's") ruling that a draft report prepared by staff within the Department of Health concerning a hospital's then-pending, but ultimately withdrawn, application for a Certificate of Need comprises "deliberative material." Such material is excluded from the statutory definition of an obtainable "government record" under the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1.1. We hold that the OPRA exemption for deliberative material is absolute, despite prior opinions that have suggested or presumed that the OPRA exemption is qualified.
We further hold that the GRC's jurisdiction is confined to OPRA matters and that it lacks authority to adjudicate common- law claims for access to public records. Under the common law, the deliberative process privilege is not absolute but qualified. Exercising our original jurisdiction, we reject appellant's common-law claim for access to the Department's draft report because the asserted need for disclosure does not
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outweigh  the  strong  public  policy  in  promoting  robust  and
confidential internal advice to a governmental decision-maker. 
12-04-12  

Saturday, December 1, 2012

AUGUSTINE W. BADIALI VS. NEW JERSEY MANUFACTURERS INSURANCE GROUP A-2795-11T3


AUGUSTINE W. BADIALI VS. NEW JERSEY MANUFACTURERS
INSURANCE GROUP
A-2795-11T3
In a prior appeal, the court considered whether defendant
New Jersey Manufacturers Insurance Group (NJM), an uninsured
motorist (UM) insurer -- barred by its policy from rejecting an
arbitration award under $15,000 -- was entitled to reject a
$29,148.62 award when only liable to pay half. In adhering to
D'Antonio v. State Farm Mut. Auto. Ins. Co., 262 N.J. Super. 247
(App. Div. 1993), which considered the same situation in an
underinsured motorist (UIM) setting, the court concluded that
the insurer was bound to the award and, therefore, affirmed a
judgment that precluded NJM's demand for a trial de novo.
Badiali v. N.J. Manufacturers Ins. Grp., No. A-4870-09 (App.
Div. Feb. 28, 2011). In this subsequent action, plaintiff
sought damages from NJM, arguing that NJM litigated in bad faith
in advocating that its policy did not preclude a rejection of
the arbitration award.
The court affirmed the summary judgment entered in favor of
NJM, holding that NJM's position was fairly debatable because it
found support in an earlier unpublished decision of this court.

RAYMOND TARABOKIA, JR., ET AL. VS. STRUCTURE TONE A-3822-11T2


RAYMOND TARABOKIA, JR., ET AL. VS. STRUCTURE TONE
A-3822-11T2
We affirmed the summary judgment dismissal of a negligence
action by an employee of a subcontractor against the general
contractor for a work-site injury, finding, under the
circumstances presented, that the scope of the duty owed by the
general or prime contractor does not encompass the manner and
means of using equipment selected, supplied and controlled by
the subcontractor.  11-16-12 

DEUTSCHE BANK NATIONAL TRUST COMPANY VS. CONRAD D. RUSSO AND IRENE RUSSO A-2437-11T1


DEUTSCHE BANK NATIONAL TRUST COMPANY VS. CONRAD D.
RUSSO AND IRENE RUSSO
A-2437-11T1
We affirmed the trial court's order denying the foreclosure
defendants' 2011 motion to vacate a default judgment that was
entered in 2009. Defendants contended that plaintiff lacked
standing because it filed the foreclosure complaint before
obtaining an assignment of the mortgage, although it obtained an
assignment before the judgment was entered. Defendants further
argued that because plaintiff lacked standing, the trial court
lacked subject matter jurisdiction over the case. We concluded
that, due to defendants' unexcused, years-long delay in
asserting the standing defense, dismissal of the foreclosure
complaint would not be an appropriate remedy. Therefore, in this
context, lack of standing would not constitute a meritorious
defense for purposes of the motion to vacate the foreclosure
judgment. We also held that, in our State court system, standing
is not a jurisdictional issue. Therefore, a foreclosure judgment
obtained by a party that lacked standing is not "void," and
defendants' reliance on Rule 4:50-1(d)(judgments void for lack
of jurisdiction) was misplaced.  11-14-12 

CRYSTAL ICE-BRIDGETON, LLC VS. CITY OF BRIDGETON, ET AL. A-1687-11T1


CRYSTAL ICE-BRIDGETON, LLC VS. CITY OF BRIDGETON, ET
AL.
A-1687-11T1
In affirming summary judgment to various municipal
defendants and a private contractor, we analyzed whether a
property owner was entitled to notice before the contractor
demolished the remainder of the owner's fire-damaged building.
We concluded that the notice requirements contained in N.J.A.C.
5:23-2.32(b)(2) and the summary hearing safeguards provided in
N.J.S.A. 40:48-2.5(f)(2) were inapplicable because the municipal
fire chief, acting pursuant to N.J.S.A. 40A:14-54.1, had "sole
authority" to direct the ongoing fire operations, including the
demolition of the building, in order to protect the lives and
property endangered by the fire, and he had not yet declared the
fire to be out. We also ruled that the municipal defendants,
and the private contractor who acted at their direction, were
immune from liability in these circumstances pursuant to the
Tort Claims Act, N.J.S.A. 59:1-1 to 12-3.  11-13-12 

ARLENE KANDRAC, ET AL. VS. MARRAZZO'S MARKET AT ROBBINSVILLE, ET AL


ARLENE KANDRAC, ET AL. VS. MARRAZZO'S MARKET AT
ROBBINSVILLE, ET AL.
In this appeal from an order granting summary judgment, we
consider whether a commercial tenant in a multi-tenant shopping
center owes a duty to its patrons to maintain an area of the
parking lot that the landlord is contractually obligated to
maintain. We hold that, although the determination of a duty
remains a fact-sensitive issue, as a general rule, the
commercial tenant does not have such a duty. 11-05-12 

DAVID L. HAWK VS. NEW JERSEY INSTITUTE OF TECHNOLOGY, ET AL. A-2059-11T3


 DAVID L. HAWK VS. NEW JERSEY INSTITUTE OF TECHNOLOGY,
ET AL.
A-2059-11T3
A tenured professor at New Jersey Institute of Technology (NJIT)
brought an action in the General Equity Part seeking to enjoin
pending "detenure" proceedings against him, claiming deprivation
of procedural due process in the university's internal
investigation of his conduct. The action was dismissed for
failure to exhaust administrative remedies, and we affirmed.
The assertion of a constitutional claim is but one factor
to be considered in determining whether judicial intervention is
justified, and in order to be relieved of the exhaustion
requirement, that claim must be a colorable one and not
dependent on facts to be developed at the administrative
proceeding, or capable of being vindicated therein.
Here, plaintiff's constitutional claim does not rise to the
level to warrant interlocutory judicial interference. The full
panoply of procedural due process rights does not attend the
administrative investigative stage and the process actually
afforded plaintiff pre-hearing was more than adequate. 10-29-12

NEW JERSEY SCHOOLS DEVELOPMENT AUTHORITY VS. JOSEPH MARCANTUONE, ET AL. A-1868-10T3


 NEW JERSEY SCHOOLS DEVELOPMENT AUTHORITY VS. JOSEPH
MARCANTUONE, ET AL.
A-1868-10T3
Plaintiff New Jersey Schools Development Authority provided
the funding for the City of East Orange to acquire by
condemnation environmentally contaminated real property owned by
defendants Joseph Marcantuone and Robert Gieson. Pursuant to
Housing Authority of New Brunswick v. Suydam Investors, 177 N.J.
2 (2003), funds representing the estimated cost of remediation
of the land were held in escrow pending a final determination on
liability under the New Jersey Spill Compensation and Control
Act, N.J.S.A. 58:10-23.11 to -23.24.
Relying on our decision in White Oak Funding, Inc. v.
Winning, 341 N.J. Super. 294 (App. Div.), certif. denied, 170
N.J. 209 (2001), the trial court held defendants were not liable
as a matter of law for the cost of remediation because they were
not "in any way responsible" for the contamination. The court
also held that defendants were not the current owners of the
property at the time the contamination was discovered because
plaintiff had previously been vested with title as condemnor
under N.J.S.A. 20:3-19.
We reverse the trial court and hold that our decision in
White Oak was in part implicitly superseded by the 2001
amendments to the Spill Act creating the "innocent purchaser"
defense codified at N.J.S.A. 58:10-23.11g(d)(5). We remand for
the court to determine whether defendants can establish, by a
preponderance of the evidence, the four elements of the
"innocent purchaser" defense. We also hold that in a postcondemnation
proceeding to determine Spill Act liability under
Suydam, defendants are deemed the "current owners" of the
property, notwithstanding N.J.S.A. 20:3-19. 10-29-12

A.D.P. VS. EXXONMOBIL RESEARCH AND ENGINEERING COMPANY A-4806-10T4


A.D.P. VS. EXXONMOBIL RESEARCH AND ENGINEERING COMPANY
A-4806-10T4
Plaintiff, a long-term employee, voluntarily disclosed to
her employer that she was an alcoholic and was going to an inpatient
rehabilitation program. At the time of her disclosure,
plaintiff's job performance was satisfactory and she was not the
subject of any pending or threatened employment or disciplinary
action. Upon her return, the employer required her to agree to
conditions, including total abstinence and random alcohol
testing for a minimum of two years, as a condition of
employment. These conditions were not imposed pursuant to a
"last chance agreement" but, rather, were required by
ExxonMobil's Alcohol and Drug Use Policy. Her employment was
terminated nearly one year later when a breathalyzer test
revealed alcohol use. She filed suit, alleging discrimination
based upon her disability and wrongful termination.
In this appeal, we consider whether summary judgment was
properly granted to the employer. Viewing the record with
favorable inferences drawn in favor of the plaintiff, the
imposition of these conditions and the termination of
plaintiff's employment pursuant to the employer's policy
constituted direct evidence of discrimination. As a result, the
burden of persuasion shifted to the employer, requiring it to
show that the employment actions taken would have occurred even
if it had not considered plaintiff's disability, see McDevitt v.
Bill Good Builders, Inc., 175 N.J. 519, 525 (2003), a burden it
failed to satisfy as a matter of law. We therefore conclude
that summary judgment dismissing plaintiff's disability
discrimination claim was inappropriate. 10-26-12 

FRANCIS NATHANIEL CLARK VS. DENISE LOCKWOOD CLARK A-1147-11T1


FRANCIS NATHANIEL CLARK VS. DENISE LOCKWOOD CLARK
A-1147-11T1
We reversed the trial court's award of alimony, holding
defendant's long-term scheme to embezzle more than $345,000 from
the joint marital business while serving as the business's
bookkeeper, led to plaintiff's fault-based claim for divorce,
caused more than a mere economic impact upon the marital assets,
and demonstrated the rare case of egregious fault justifying
consideration of whether defendant's marital misconduct obviated
an award of alimony. 10-19-12 

Valeria Headen v. Jersey City Board of Education (A- 17-11; 068598)


 Valeria Headen v. Jersey City Board of Education (A-
17-11; 068598)
The Civil Service Act’s paid vacation leave provisions
apply to career service, non-teaching staff employees
of school districts that have opted to be part of the
civil service system, including ten-month employees
such as Valeria Headen. Because the Act and its
implementing regulations establish a floor for the
amount of leave to be provided to such employees and a
collectively negotiated agreement provided Headen with
more than the minimum paid vacation leave to which she
was entitled under the Act, this matter was properly
dismissed. 11-15-12

In the Matter of The Parentage of a Child By T.J.S. and A.L.S., h/w (A-130-10; 067805)


In the Matter of The Parentage of a Child By T.J.S.
and A.L.S., h/w (A-130-10; 067805)
The judgment of the Appellate Division is affirmed by
an equally divided Court. Absent adoption, the Act
does not recognize an infertile wife as the legal
mother of her husband’s biological child born to a
gestational carrier. The Act does no violate the
right to equal protection under Article I, paragraph I
of the New Jersey Constitution because the
distinctions drawn between an infertile husband and an
infertile wife are grounded in actual reproductive and
biological differences, which the Legislature may
consider in defining alternative means of creating
parenthood. 10-24-12