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

Tuesday, January 28, 2014

Walker case Police seeing defendant-smoking joint in open door justified...



Police seeing defendant-smoking
joint in open door justified the warrantless entry into defendant’s apartment
and the seizure of the marijuana cigarette.





















 State v Walker 213 N.J. 281 (2013)
Although the information contained in the tip was uncorroborated, by the
time the officers knocked at the door of defendant’s apartment, subsequent
events, created by defendant’s own actions, established probable cause and
exigent circumstances which justified an entry into defendant’s apartment.
Thus, the warrantless seizure of the marijuana cigarette and all the CDS found
in defendant’s apartment was proper and permissible under the New Jersey and
federal constitutions. Although the underlying offense here, possession of
marijuana, is a disorderly persons offense, the circumstances indicate that the
officers’ warrantless entry into defendant’s home was objectively reasonable. A
limited entry was necessary to arrest defendant for the disorderly persons
offense and to retrieve the marijuana cigarette. After entering, the officers
saw in the living room CDS and other contraband in plain view. These items were
subject to seizure as well.

WATERSIDE VILLAS HOLDINGS, LLC VS. MONROE TOWNSHIP A-2466-12T1

 WATERSIDE VILLAS HOLDINGS, LLC VS. MONROE
TOWNSHIP
 A-2466-12T1

We address whether a municipality is precluded from
seeking dismissal of a property owner's tax appeal pursuant
to N.J.S.A. 54:4-34, in circumstances where the assessor's
Chapter 91 information request has omitted a word from the
statute. We hold that where, as here, the omission is
minor, does not alter the substance of the statute, and
does not prejudice the property owner, the municipality is
still entitled to seek dismissal under the statute. 01/24/14

R.S. VS. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES AND UNION COUNTY BOARD OF SOCIAL SERVICES A-5798-11T1

 R.S. VS. DIVISION OF MEDICAL ASSISTANCE AND
 HEALTH SERVICES AND UNION COUNTY BOARD OF SOCIAL
 SERVICES
 A-5798-11T1

In this appeal, we address an institutionalized
Medicaid recipient's ability to shelter income for his non-
institutionalized spouse. Here, the institutionalized
petitioner appeals from a final agency decision of the
Division of Medical Assistance and Health Services
(Division) finding that the community spouse monthly income
allowance (CSMIA) for his wife, D.S., should be calculated
in accordance with 42 U.S.C.A. § 1396r-5(e)(2)(B) and
N.J.A.C. 10:71-5.7(e), rather than pursuant to a Family
Part separate maintenance order, which gave petitioner's
spouse substantially more money per month than the amount
calculated according to the CSMIA. Following our review,
we conclude the Division, when determining the
institutionalized spouse's obligation for his nursing home
care, is not bound to abide by the terms of the separate
maintenance order, entered in a non-contested proceeding,
without notice to the Division, because the Order was
designed to circumvent the regulations governing the
CSMIA. We affirm the Division's decision.
01/23/14

THOMAS DEMARCO, ET AL. VS. SEAN ROBERT STODDARD, D.P.M., ET AL. A-3924-12T1

 THOMAS DEMARCO, ET AL. VS. SEAN ROBERT STODDARD,
D.P.M., ET AL.
 A-3924-12T1

In this insurance coverage dispute, choice-of-law
analysis requires that New Jersey law apply to a medical
malpractice policy issued in Rhode Island to a doctor who
falsely claimed in his application for insurance that a
majority of his practice was conducted in Rhode Island.
The alleged malpractice occurred in New Jersey upon a New
Jersey resident, and the policy covered the out-of-state
practice of the doctor.

 The same analysis and reasoning previously applied in
cases pertaining to compulsory auto insurance leads to the
conclusion that the carrier's remedy of rescission in this
case is limited so that the minimum compulsory amount of
malpractice insurance remains available for an innocent
patient claiming he was injured by the doctor's
malpractice. 01/22/14

JUDITH A. DINAPOLI VS. BOARD OF EDUCATION OF THE TOWNSHIP OF VERONA, ESSEX COUNTY A-5649-11T2

JUDITH A. DINAPOLI VS. BOARD OF EDUCATION OF THE
TOWNSHIP OF VERONA, ESSEX COUNTY
 A-5649-11T2

Respondent Board of Education of the Township of
Verona sought review of the final decision of the
Commissioner of Education finding Petitioner retained her
secretarial tenure rights and could “bump back” to her
secretarial position after she had voluntarily transferred
to a non-secretarial position. The parties stipulated the
issue as whether Petitioner was entitled to bumping rights
to a secretarial or clerical position following the
elimination of her then non-secretarial position.
Respondent argued that a secretary forfeits her tenure upon
promotion to a non-secretarial position, as there is no
legislative authority which permits the retention of
secretarial tenure rights. Petitioner urged the court to
find that the tenure rights she acquired through her
employment as a secretary prior to promotion were not
relinquished and remain a continuing entitlement. The
court reversed. The court explained that the express terms
of N.J.S.A. 18A:17-2 do not support the Commissioner’s
conclusion that secretarial staff maintain tenure upon
transfer to non-secretarial positions, thus Petitioner
relinquished her secretarial and tenure rights when she
voluntarily assumed the non-secretarial position.
01/22/14

Robert B. Beim v. Trevor R. Hulfish (A-33/34-12; 071025)

Robert B. Beim v. Trevor R. Hulfish (A-33/34-12;
071025)

 The Wrongful Death Act does not authorize claims for
damages based on estate taxes paid by a decedent’s
estate because such claims do not fit within the
statutory cause of action defined by N.J.S.A. 2A:31-1
and the alleged damages do not constitute “pecuniary”
losses as required by N.J.S.A. 2A:31-5. 1-28-14

Saturday, January 25, 2014

Removing the Executor of a Probate Estate in Union County NJ

Removing the Executor of a Probate Estate in Union County
By Kenneth A. Vercammen, Esq.
         In New Jersey, the court and surrogate do not supervise how an executor or administrator handles the estate. Unfortunately, the Executor occasionally fails to timely carry out their duties. They may fail to file tax returns, fail to keep records, misappropriate funds or ignore instructions under the Will. If you are not satisfied with the handling of the estate, you can have an attorney file a Complaint in the Superior Court. If there is no will, someone can petition the surrogate to be appointed as "administrator" of the estate.

         The New Probate Statute of NJ revised various sections of the New Jersey law on Wills and estates. law makes a number of substantial changes to the provisions governing the administration of estates and trusts in New.

Duty of Executor in Probate & Estate Administration
1. Conduct a thorough search of the decedent's personal papers and effects for any evidence which might point you in the direction of a potential creditor;
2. Carefully examine the decedent's checkbook and check register for recurring payments, as these may indicate an existing debt;
3. Contact the issuer of each credit card that the decedent had in his/her possession at the time of his/ her death;
4. Contact all parties who provided medical care, treatment, or assistance to the decedent prior to his/her death;
         Your attorney will not be able to file the NJ inheritance tax return until it is clear as to the amounts of the medical bills and other expenses. Medical expenses can be deducted in the inheritance tax.
         Under United States Supreme Court Case, Tulsa Professional Collection Services, Inc., v. Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased, the Personal Representative in every estate is personally responsible to provide actual notice to all known or "readily ascertainable" creditors of the decedent. This means that is your responsibility to diligently search for any "readily ascertainable" creditors.
Other duties/ Executor to Do
Bring Will to Surrogate
Apply to Federal Tax ID #
Set up Estate Account at bank (pay all bills from estate account)
Pay Bills
Notice of Probate to Beneficiaries (Attorney can handle)
If charity, notice to Atty General (Attorney can handle)
File notice of Probate with Surrogate (Attorney can handle)
File first Federal and State Income Tax Return [CPA- ex Marc Kane]
Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney can handle)
File waivers within 8 months upon receipt (Attorney can handle)
Prepare Informal Accounting
Prepare Release and Refunding Bond (Attorney can handle)

Obtain Child Support Judgment clearance (Attorney will handle)

         Let's review the major duties involved-
In General. The executor's job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Let's take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.
Probate. The executor must "probate" the Will. Probate is a process by which a Will is admitted. This means that the Will is given legal effect by the court. The court's decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will.
         An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estate's behalf.
         Pay the Debts. The claims of the estate's creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys', accountants' and appraisers' fees, must also be paid.
         Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.
         Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estate's income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceased's final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.
         Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.
         Distribute the Assets. After all debts and expenses have been paid, the executor will distribute the assets. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.
         Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience
         At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executor's job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Let's review the major duties involved, which we've set out below.
         In General. The executor's job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Let's take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.
         Probate. The executor must "probate" the Will. Probate is a process by which a Will is admitted. This means that the Will is given legal effect by the court. The court's decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will.
         An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estate's behalf.

         Pay the Debts. The claims of the estate's creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys', accountants' and appraisers' fees, must also be paid.

         Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate's assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.

         Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estate's income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceased's final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.

         Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.

         Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.
         Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates.

COMPLAINT FOR ACCOUNTING
A Complaint for Accounting is filed with the Probate Part to request on accounting, removal of the current executor and selection of a new person to administer and wrap up the estate.
A signed certification of one or more beneficiaries is needed. In addition, an Order to Show Cause is prepared by your attorney. The Order to Show Cause is to be signed by the Judge directing the executor, through their attorney, to file a written answer to the complaint, as well as appear before the court at a specific date and time.
As with a litigated court matter, trials can become expensive. Competent elder law/probate attorney may charge an hourly rate of $300-$450 per hour, with a retainer of $4000 needed. Attorneys will require the full retainer to be paid in full up front.
The plaintiff can demand the following:
(1) That the named executor be ordered to provide an accounting of the estate to plaintiff.
(2) Defendant, be ordered to provide an accounting for all assets of d1 dated five years prior to death.
(3) Payment of plaintiff's attorney's fees and costs of suit for the within action.
(4) Declaring a constructive trust of the assets of the decedent for the benefit of the plaintiff and the estate.
(5) That the executor be removed as the executor/administrator of the estate and that someone else be named as administrator of the estate.
(6) That the executor be barred from spending any estate funds, be barred from paying any bills, be barred from taking a commission, be barred from writing checks, be barred from acting on behalf of the estate, except as specifically authorized by Superior Court Order or written consent by the plaintiff.
EXECUTOR'S COMMISSIONS
Executors are entitled to receive a commission to compensate them for work performed. Under NJSA 3B:18-1 et seq., Executors, administrators and other fiduciaries are entitled to receive a commission on both the principal of the estate, and the income earned by assets.
However, if you have evidence that the executor has breached their fiduciary duties or violated a law, your Superior Court accounting complaint can request that the commissions be reduced or eliminated.
SALE OF REAL ESTATE AND OTHER PROPERTY
Occasionally, a family member is living in a home owned by the decedent. To keep family harmony, often this family member is permitted to remain in the home temporarily. However, it may later become clear that the resident has no desire on moving, and the executor has neither an intention to make them move nor to sell the house. The remedy a beneficiary has can be to have your attorney include in the Superior Court complaint a count to
1) remove the executor
2) remove the tenant and make them pay rent to the estate for the time they used the real property since death without paying rent
3) compel the appraisal of the home and, thereafter, the sale of the property
4) make the executor reimburse the estate for the neglect or waste of assets.
CONCLUSION
As a beneficiary, you will probably eventually be requested to sign a release and refunding bond. If you have evidence of misappropriation, you may consider asking the executor for an informal accounting prior to signing the release and refunding bond. If you have concern regarding the handling of an estate, schedule an appointment to consult an elder law attorney.

Kenneth A. Vercammen is a Middlesex County, NJ trial attorney who has published 125 articles in national and New Jersey publications on Probate and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. He is Chair of the American Bar Association Estate Planning & Probate Committee. He is also Editor of the ABA Elder Law Committee Newsletter
He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many litigation matters, Municipal Court trials, and contested Probate hearings.

KENNETH VERCAMMEN
Attorney at Law
Legal Resume
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500

www.centraljerseyelderlaw.com

Monday, January 13, 2014

RICHARD CAPORUSSO, ET AL. VS. NEW JERSEY DEPARTMENT OF HEALTH

 RICHARD CAPORUSSO, ET AL. VS. NEW JERSEY
DEPARTMENT OF HEALTH AND SENIOR SERVICES, ET AL.
 A-2266-12T3

Plaintiffs' action, submitted directly pursuant to
Rule 2:2-3(a)(2), seeks "injunctive and/or declaratory
relief" to compel the Department of Health to comply with
the Legislature's directives set forth in the New Jersey
Compassionate Use Medical Marijuana Act (the Act), N.J.S.A.
24:6I-1 to -16. Further, we consider whether plaintiffs
have set forth an actionable constitutional challenge.

Following our review, we conclude DOH must complete
its reporting requirements, set forth in N.J.S.A. 24:6I-
12(a)(1), (2) and (c), within forty-five days of the date
of this opinion. All other requests for relief were
denied. 01/13/14

L.J.ZUCCA, INC. VS. ALLEN BROS. WHOLESALE

 L.J.ZUCCA, INC. VS. ALLEN BROS. WHOLESALE
DISTRIBUTORS INC., ET AL.
 A-2723-11T1

Pursuant to the Unfair Cigarette Sales Act of 1952,
N.J.S.A. 56:7-18 to -38, the Director of the Division of
Taxation issues price lists for all brands of cigarettes,
which minimum base prices wholesalers are presumptively
required to charge retailers. Proof of underpricing, or
rebates or concessions granted to retailers, constitutes
prima facie evidence of anticompetitive intent, which is a
required element of a statutory violation. Anticompetitive
intent under the Act does not have the same meaning as
"predatory intent," as that phrase is understood in federal
antitrust law. Plaintiff was not required to prove that a
defendant had the ability to recoup its underpricing
losses.

However, a wholesaler may defend against a prima facie
case of violation by presenting evidence of its actual
costs of doing business that are less than the presumed
costs the Director uses to set the price schedule. It may
also defend by showing that it did not have the requisite
anticompetitive intent in underpricing its cigarettes or in
granting rebates or concessions. 01/09/14

Tuesday, January 7, 2014

ERNEST BOZZI VS. CITY OF ATLANTIC CITY, ET AL.



 ERNEST BOZZI VS. CITY OF ATLANTIC CITY, ET AL.
A-0532-12T4

We reviewed a Law Division order concluding plaintiff Ernest Bozzi suffered a violation of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, for which he was entitled to damages and attorney's fees. The trial court rejected defendants' arguments that plaintiff could not request relief under OPRA because he failed to file a written request and that the document sought by plaintiff — a bid package for a city project — was exempt from OPRA's reach and governed by the Local Public Contracts Law (LPCL), N.J.S.A. 40A:11-1 to -51.

We affirmed the trial judge's conclusion that the requested bid specifications were government records, not otherwise excepted from OPRA's fee limits by the LPCL. However, in light of the clear statutory provisions, plaintiff's request, although seeking a government record, failed to comply with OPRA's writing requirement, which was fatal to recovery under the statute. 01/07/14

NEW JERSEY DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT VS. CREST ULTRASONICS, ET AL



 NEW JERSEY DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT VS. CREST ULTRASONICS, ET AL
A-0417-12T4

We uphold the constitutionality of N.J.S.A. 34:8B-1, a measure the Legislature enacted in 2011 after the Governor's conditional veto of a more sweeping version of the proposed law. Subject to certain exceptions, the statute bars employers seeking to fill job vacancies in this State from purposefully or knowingly publishing advertisements stating that job applicants must be currently employed in order for their applications to be accepted, considered, or reviewed.

Appellants, a New Jersey company and its chief executive officer, posted a newspaper ad containing such prohibited language shortly after the law became effective, and were fined $1,000 by the Department of Labor and Workforce Development. They contend that N.J.S.A. 34:8B-1 improperly infringes upon their rights of free speech, in violation of the First Amendment of the United States Constitution and Article I, Paragraph 6 of the New Jersey Constitution.

Applying the well-established "intermediate scrutiny" test for evaluating content-based restrictions on commercial speech set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 561, 100 S. Ct. 2343, 2349, 65 L. Ed. 2d 341, 348 (1980), we conclude that the statute is narrowly tailored to advance a limited, but nevertheless substantial, governmental objective in maximizing the opportunities for unemployed workers to have their qualifications presented to prospective employers. The modest restrictions that the State has placed upon job advertising are constitutionally valid, even though employers might not consider, or ultimately hire, most of the unemployed applicants who respond to such job postings.

We therefore affirm the finding of a violation, but remand for the Department for reconsideration of the fine under the circumstances presented. 01/07/14

EDWARD MCGLYNN, JR., ET AL. VS. STATE OF NEW JERSEY, ET AL.

 EDWARD MCGLYNN, JR., ET AL. VS. STATE OF NEW
JERSEY, ET AL.
A-1743-12T3

A utility company does not owe a duty of care to passing motorists to remove a dead tree located within its right-of-way over privately owned lands where the New Jersey Department of Transportation also has a right-of-way. The tree fell on an adjoining highway, striking a vehicle, killing one occupant, and causing severe injuries to another. 01/03/14

Wednesday, January 1, 2014

ADAM M. FINKEL, ET AL. VS. TOWNSHIP COMMITTEE



 ADAM M. FINKEL, ET AL. VS. TOWNSHIP COMMITTEE
OF THE TOWNSHIP OF HOPEWELL, ET AL.
A-0908-13T2

A proposed question on a non-binding local referendum may not be placed on a ballot when the municipality has failed to submit the proposal to the county clerk within 81 days before an election as required by N.J.S.A. 19:37-1, even where the municipality has submitted the proposal within the 65-day deadline separately set forth in N.J.S.A. 19:37-2. Among other things, a governing body's non-compliance with the 81-day deadline in N.J.S.A. 19:37-1 conflicts with the local citizens' interests, as protected by N.J.S.A. 19:37-1.1, in having sufficient time to react to a referendum that has been proposed to be placed on the ballot.

Because the 81-day deadline of N.J.S.A. 19:37-1 was not met here, we declare the referendum at issue untimely and thus invalid. Consequently, we reverse the trial court's order holding to the contrary. Because the election has occurred and the governing body has already acted on the policy question posed by the referendum, we issue no other relief beyond our declaratory ruling.

We also explain why we declined to dismiss the appeal as moot, because the appeal raises a significant issue of interpretation of the election laws and because the tight time frames involved under the statues make the issue one that is "capable of repetition, yet evading review." 12/30/13
 

CARIBBEAN HOUSE, INC. VS. NORTH HUDSON YACHT

CARIBBEAN HOUSE, INC. VS. NORTH HUDSON YACHT
 CLUB AND THE RIVER PALM TERRACE
 A-3857-11T1
 A-4784-11T1 (CONSOLIDATED)

We review two orders restricting the use of a deeded
access easement granted to defendant owner of the dominant
estate when plaintiff's servient estate was subdivided, and
plaintiff sold the land-locked dominant estate to
defendant. Because we conclude that the use of the
easement to which the owner of the servient estate objected
benefitted only the dominant estate to which the easement
is appurtenant, notwithstanding the ancillary value the
arrangement provided to a third-party, we reverse. 12/30/13

ESTATE OF MYROSLAVA KOTSOVSKA, BY OLENA KOTSOVSKA VS. SAUL LIEBMAN

ESTATE OF MYROSLAVA KOTSOVSKA, BY OLENA KOTSOVSKA
 ADMINISTRATOR VS. SAUL LIEBMAN
 A-5512-11T4

In this appeal from a $565,806.37 final judgment in a wrongful
death action, we consider whether the question of the decedent's
status as an employee or independent contractor, which the jury
determined adversely to defendant, should have been decided in the
Division of Workers' Compensation.

We conclude that the Division was the proper forum for
resolution of that issue pursuant to Kristiansen v. Morgan, 153 N.J.
298 (1998), modified on other grounds, 158 N.J. 681 (1999).
Notwithstanding the superior court's concurrent jurisdiction to
decide the question of decedent's employment status, we reverse the
liability verdict because we also conclude that the jury
instructions on the issue were seriously flawed. Rejecting
defendant's remaining points of error, however, we affirm the jury's
damages verdict and preserve it pending remand to the Division to
determine decedent's employment status. 12/26/13

MIDLAND FUNDING LLC VS. CARL ALBERN, JR.

 MIDLAND FUNDING LLC VS. CARL ALBERN, JR.
A-0562-12T4

In this appeal, the court considered a procedural
question: is a defendant, who, in response to a complaint,
moved for dismissal but did not file an answer after the
motion was denied, entitled to notice of a plaintiff's
request for default? Because Rule 4:43-1 does not
expressly authorize an ex parte request for default in this
unusual circumstance, and because the rules are based on a
policy favoring the disposition of cases on their merits,
the court reversed the denial of defendant's Rule 4:50
motion to vacate both the default and the default judgment
later entered. 12/23/13

BAANYAN SOFTWARE SERVICES, INC. VS. HIMA BINDHU

BAANYAN SOFTWARE SERVICES, INC. VS. HIMA BINDHU
KUNCHA
 A-2058-12T3
Plaintiff is an international information technology
and software consulting company with headquarters in New Jersey.
Plaintiff hired defendant to perform consulting
services in Illinois. Defendant never lived in, worked in,
or visited New Jersey. We hold that defendant lacks
sufficient minimum contacts with New Jersey, and that to
subject defendant to jurisdiction in New Jersey would
offend traditional notions of fair play and substantial
justice. 12/19/13

SUSAN MARIE HARTE VS. DAVID RICHARD HAND

SUSAN MARIE HARTE VS. DAVID RICHARD HAND/
T.B. VS. DAVID RICHARD HAND
 A-5430-11T4/ A-5431-11T4 (CONSOLIDATED)

We affirm counsel fees and the refusal to consider an
expert opinion on imputed income because it is a net
opinion. We reverse the aspect of the motion judge's
decision involving the calculation of child support for
multiple families because the judge ignored the obligor's
multiple obligations. We suggest one way to fairly
calculate child support that is consistent with the
purposes of the Child Support Guidelines not to penalize
later-born children of a different mother. We suggest
averaging the worksheet calculations, first with one family
representing the "prior order," and then with the other
family representing the "prior order." Using this method
the obligor and all of the children are treated equitably. 12/18/13