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

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Kenneth Vercammen & Associates, P.C.

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(732) 572-0500

Sunday, March 29, 2015

WILLIAM JAMES VS. ROSALIND RUIZ A-3543-13T2

WILLIAM JAMES VS. ROSALIND RUIZ 
A-3543-13T2 
We address in this appeal the propriety of questioning an expert witness at a civil trial, either on direct or cross- examination, about whether that testifying expert's findings are consistent with those of a non-testifying expert who issued a report in the course of an injured plaintiff's medical treatment. We also consider the propriety of counsel referring to the non-testifying expert's findings in closing argument. We hold that a civil trial attorney may not pose such consistency/inconsistency questions to a testifying expert, where the manifest purpose of those questions is to have the jury consider for their truth the absent expert's hearsay opinions about complex and disputed matters. Even where the questioner's claimed purpose is solely restricted to impeaching the credibility of an adversary's testifying expert, spotlighting that opposing expert's disregard or rejection of the non-testifying expert's complex and disputed opinions, we hold that such questioning ordinarily should be disallowed under N.J.R.E. 403. 

Lastly, we hold that the closing arguments of counsel should adhere to these restrictions, so as to prevent the jury from speculating about or misusing an absent expert's complex and disputed findings. 

 03/25/15 

Saturday, March 28, 2015

MARTHA C. PTASZYNSKI, ETC. VS. ATLANTIC HEALTH SYSTEMS, INC., D/B/A MT. KEMBLE REHABILITATION AT MORRISTOWN MEMORIAL HOSPITAL A-0245-12T3

 MARTHA C. PTASZYNSKI, ETC. VS. ATLANTIC HEALTH SYSTEMS, INC., D/B/A MT. KEMBLE REHABILITATION AT MORRISTOWN MEMORIAL HOSPITAL 
A-0245-12T3  We reverse the judgments entered for plaintiff on the claims asserted under the Nursing Home Responsibilities and Residents' Rights Act (the "NHA" or the "Act"), N.J.S.A. 30:13-1 to -17. We conclude that an individual may maintain an action under N.J.S.A. 30:13-8a for a violation of a nursing home resident's "rights" under the Act, but may only assert a cause of action under N.J.S.A. 30:13-4.2 for a violation of the statutory provisions pertaining to security deposits. 
We also reverse the judgments entered for plaintiff on her negligence and wrongful death claims. We determine that the trial judge erred by: (1) qualifying plaintiff's witness as an expert in nursing law and allowing the witness to testify as to the meaning of a statute; (2) refusing to provide the jury with an instruction pursuant to Scafidi v. Seiler, 119 N.J. 93 (1990), concerning the decedent's pre-existing conditions; and (3) failing to instruct the jury to avoid the possibility for a double recovery on plaintiff's separate claims, based on the same injuries or harm. 

 03/20/15

DANNY CAICEDO, ET AL., VS. FABIAN CAICEDO, ET AL. A-6163-12T2

DANNY CAICEDO, ET AL., VS. FABIAN CAICEDO, ET AL. 
A-6163-12T2 

This case arises out of a jury verdict for damages sustained by a thirteen-year-old boy when the bicycle he was riding was struck by a police car driven by a Newark police detective. The officer had arrested an individual for a disorderly persons offense, and was transporting the prisoner to police headquarters for processing when the collision occurred. 03/17/15 

BRUNSWICK BANK & TRUST VS. AFFILIATED BUILDING CORP/ BRUNSWICK BANK & TRUST VS. HELN MANAGEMENT, LLC/ BRUNSWICK BANK & TRUST VS. HELN MANAGEMENT,LLC, AND AFFILIATED BUILDING CORP. A-5225-12T2

BRUNSWICK BANK & TRUST VS. AFFILIATED BUILDING CORP/ BRUNSWICK BANK & TRUST VS. HELN MANAGEMENT, LLC/ BRUNSWICK BANK & TRUST VS. HELN MANAGEMENT,LLC, AND AFFILIATED BUILDING CORP. A-5225-12T2/A-1893-13T3/A-2109-13T3(CONSOLIDATED) 
Because commercial lenders are excepted, N.J.S.A. 2A:50-2.3(a), from the "foreclosure first" rule, N.J.S.A. 2A:50-2, in seeking to collect a debt secured by a mortgage, plaintiff here convoluted the parties' rights and obligations by choosing to first sue defendants in the Law Division for a money judgment and later in foreclosure actions in the Chancery Division in two different vicinages on the four parcels of property in question. In defendants' appeals of an order that granted summary judgment in one action and of orders denying stays of sheriff sales in the others, the court concluded that the Law Division judgment capped the amount due plaintiff on the items subsumed within that judgment and, therefore, barred plaintiff from seeking or collecting any greater amount in the foreclosure actions. The court also held that defendants were entitled to a credit for the fair market value of any property obtained by plaintiff through the foreclosure proceedings. And, because of the convoluted circumstances and the absence of clarity regarding the amount of cash and the value of property plaintiff obtained through its collection efforts, the court remanded the matter for the creation of a full and complete record of all relevant facts before a single judge to ensure that plaintiff has not received a windfall. 03/17/15 

FRANCES PARKER, Individually and as General Administratrix of the ESTATE OF DALE S. PARKER v. JOHN W. POOLE, M.D. A-1874-12T4

FRANCES PARKER, Individually and as General Administratrix of the ESTATE OF DALE S. PARKER v. JOHN W. POOLE, M.D. 
A-1874-12T4(NEWLY PUBLISHED OPINION FOR MARCH 17,2015) 

In this medical malpractice suit, we conclude the trial court's exclusion of defendant treating physician's deposition testimony on a critical issue of causation constituted reversible error. The trial court excluded the critical deposition testimony, finding that it was speculative. We hold that a party's answer to a valid deposition question is admissible to impeach contrary trial testimony, even if the answer is speculative. Following analogous federal precedent, hearsay statements admitted under the N.J.R.E. 803(b)(1) party-opponent exception are not subject to N.J.R.E. 701 personal-knowledge, trustworthiness, or lay-opinion requirements. 03/17/15 

LORI A. WACKER-CIOCCO AND MICHAEL J. CIOCCO VS. GOVERNMENT EMPLOYEES INSURANCE COMPANY, D/B/A GEICO A-2547-13T4

LORI A. WACKER-CIOCCO AND MICHAEL J. CIOCCO VS. GOVERNMENT EMPLOYEES INSURANCE COMPANY, D/B/A GEICO 
A-2547-13T4 

In Procopio v. Government Employees Insurance Company, 433 N.J. Super. 377 (App. Div. 2013), the plaintiff insured asserted a claim for underinsured motorist (UIM) benefits and a bad faith claim against his carrier. Although the trial court bifurcated the claims for trial, holding the bad faith claim in abeyance, it compelled discovery to proceed on all claims. We held it was an abuse of discretion for the trial court to order that discovery on both claims proceed simultaneously. In this case, the initial decision to deny the severance motion came after some discovery related to the bad faith claim had been provided and before Procopio was decided. This interlocutory appeal presents the question whether the disclosure of some bad faith-related materials brings the denial of a severance motion and the decision to compel related discovery within the scope of the trial court's proper exercise of discretion. We hold that it does not. 03/16/15 

L.C. VS. BOARD OF REVIEW, DEPARTMENT OF LABOR AND LAKELAND BANK A-5997-12T2

L.C. VS. BOARD OF REVIEW, DEPARTMENT OF LABOR AND LAKELAND BANK 
A-5997-12T2 

In this unemployment insurance appeal, we construe L. 1999, c. 391, § 1, codified at N.J.S.A. 43:21-5(j), which allows a person to receive unemployment insurance benefits when "the individual has left work or was discharged due to circumstances resulting from the individual being a victim of domestic violence." The statute requires a claimant to present at least one of six kinds of proof that he or she was a domestic violence victim, including "documentation or certification of the domestic violence provided by a social worker, member of the clergy, shelter worker or other professional who has assisted the individual in dealing with the domestic violence." We conclude that an attorney may serve as an "other professional." Regarding the statute's causation element, we conclude that being a victim of domestic violence must be a substantial factor in the claimant's decision to resign, but need not be the sole reason. Applying these principles, we reversed the Board of Review's denial of benefits and remanded for a new hearing.  
03/16/15 

L.A. and The Horace Mann Insurance Company v. Board of Education of the City of Trenton, Mercer County (A-59-13;

L.A. and The Horace Mann Insurance Company v. Board of Education of the City of Trenton, Mercer County 
(A-59-13; 073401) 

N.J.S.A. 18A:16-6 requires indemnification for fees and costs associated with defending against a civil action unless there is proof by a preponderance of the evidence that the employee’s conduct fell outside the course of performance of his or her employment duties. 

 3-25-15 

62-64 Main Street, L.L.C. and 59-61 Moore Street, L.L.C. v. Hackensack; Planning Board of the City of Hackensack (A-19/20-13;

62-64 Main Street, L.L.C. and 59-61 Moore Street, L.L.C. v.  Hackensack; Planning Board of the City of Hackensack (A-19/20-13; 072699) 

As the Court earlier concluded in Wilson v. City of Long Branch, 27 N.J. 360 (1958), subsections (a), (b), and (d) of N.J.S.A. 40A:12A-5 do not violate the Blighted Areas Clause of the New Jersey Constitution. A determination that an area is blighted and in need of redevelopment does not require a finding that the area “negatively affects surrounding properties,” so long as the legislative definitions are met. Substantial evidence in the record supports the Hackensack Planning Board’s findings – later adopted by the Mayor and Council – that Lots 4-7 at 62-64 Main Street and Lot 8 at 59-61 Moore Street were part of an area in need of redevelopment. 

 3-23-15 

Bruce Maida v. Michael Kuskin (A-50-13

Bruce Maida v. Michael Kuskin (A-50-13

A request for a civil reservation in municipal court must be made in open court and contemporaneously with the court’s acceptance of defendant’s guilty plea. If the prosecutor or the victim demonstrates good cause, or the charge to which a defendant pleads guilty does not arise out of the same occurrence that is the subject of the civil proceeding, a civil reservation order may not be entered.  3-19-15

Sunday, March 15, 2015

BRIAN ROYSTER VS. NEW JERSEY STATE POLICE, ET AL. A-3357-12T3

BRIAN ROYSTER VS. NEW JERSEY STATE POLICE, ET AL. 
A-3357-12T3 

Plaintiff asserted claims under the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101 to 12213, and the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. We held that the doctrine of state sovereign immunity barred the ADA claim, even though defendants did not seek dismissal of the claim on this basis until they filed a motion for judgment notwithstanding the verdict. We also concluded that plaintiff's job responsibilities did not preclude him from asserting a CEPA claim and he presented sufficient evidence for the jury to consider this claim. But we reversed the judgment on the CEPA award and remanded for a new CEPA trial because the jury instructions were fatally flawed. 

 03/10/15 

PAUL AND BARBARA MILLER VS. BANK OF AMERICA HOME LOAN SERVICING, L.P. A-0169-13T2

 PAUL AND BARBARA MILLER VS. BANK OF AMERICA HOME LOAN SERVICING, L.P. 
A-0169-13T2 
Reaching the same conclusion as our colleagues in Arias v. Elite Mortg. Grp., Inc., ___ N.J. Super. ___ (2015), we hold the federal Home Affordable Modification Program's (HAMP) preclusion of private causes of action would not prevent a borrower from pursuing state law claims arising from the breach of an underlying temporary contractual arrangement pending the lender's review under the HAMP guidelines, rejecting the trial judge's reliance on unreported opinions by the United States District Court for the District of New Jersey to the contrary. 

Summary judgment was affirmed, however, because plaintiffs' deposition allegations of timely payment, which were otherwise unsupported by documents referenced but never produced, were insufficient to defeat the business record produced by the lender showing a failure to comply with the terms of the temporary payment agreement. 03/05/15

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. P.C. A-1045-14T4(NEWLY PUBLISHED OPINION FOR MARCH 4, 2015)

 NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. P.C. 
A-1045-14T4(NEWLY PUBLISHED OPINION FOR MARCH 4, 2015) 
Defendant P.C. appeals from a Family Part order determining she neglected the emotional needs of her teenaged daughter O.B. (Olivia). At the commencement of a fact-finding hearing on the complaint filed by the Division of Youth and Family Services 

(the Division) concerning conduct by B.C., defendant's former husband, the trial judge suggested sua sponte the facts "could rise" to support a finding of neglect against defendant, even though the Division's complaint had not alleged substantive allegations that she had abused or neglected Olivia. Following an adjournment, although the Division's complaint was not amended, the same judge presided over the reconstituted fact-finding hearing reviewing the conduct of both defendant and B.C. We conclude this was error and reverse.03/05/15

IN THE MATTER OF DECEMBER 9, 2014 SPECIAL SCHOOL ELECTION A-0653-14T2

 IN THE MATTER OF DECEMBER 9, 2014 SPECIAL SCHOOL ELECTION 
A-0653-14T2 
The Lower Cape May School District is a limited purpose school district educating students in grades seven through twelve who reside in the Borough of West Cape May (West Cape May), the City of Cape May (Cape May) and the Township of Lower (Lower). Cape May sought to withdraw from the regional school district. Accordingly, a special school election was scheduled pursuant to N.J.S.A. 18A:13-57 to afford the voters of Cape May and the constituent districts the opportunity to vote on whether Cape May should be permitted to withdraw. However, the statute is silent as to whether Cape May or the regional school district should bear the cost of the special election. As a matter of first impression, we conclude that N.J.S.A. 19:60-12 obligates the regional school district to pay the cost of the special school election to determine Cape May's proposed withdrawal from the Lower Cape May School District.  03/04/15

STATE FARM INDEMNITY COMPANY VS. NATIONAL LIABILITY & FIRE INSURANCE COMPANY A-5972-13T1

STATE FARM INDEMNITY COMPANY VS. NATIONAL LIABILITY & FIRE INSURANCE COMPANY 
A-5972-13T1 

In an inter-company arbitration between insurers over contribution for PIP benefits, pursuant to N.J.S.A. 39:6A-11, all issues, including disputes over coverage, are to be decided by the arbitrator. Given the purpose of the no-fault law to expedite the resolution of PIP disputes, we infer that the Legislature intended to permit summary actions to enforce arbitration under N.J.S.A. 39:6A-11. Hence, the trial court properly allowed plaintiff to proceed by order to show cause, filed pursuant to Rule 4:67-1(a). 03/04/15 

DELRAY HOLDING, LLC AND BAY DOCK HOLDINGS, LLC VS. SOFIA DESIGN AND DEVELOPMENT AT SOUTH BRUNSWICK, LLC, A-0203-13T3

DELRAY HOLDING, LLC AND BAY DOCK HOLDINGS, LLC VS. 
SOFIA DESIGN AND DEVELOPMENT AT SOUTH BRUNSWICK, LLC,  
A-0203-13T3 

Members of and investors in two LLCs lacked standing as individuals to pursue claims that belonged to the LLCs and that had been settled in other litigation, notwithstanding the individuals' characterization of the claims as tortious interference with their investment agreements with the LLCs. 03/02/15 

STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION VS. CHERRY HILL MITSUBISHI, INC., ET AL. A-2899-13T2

STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION VS. CHERRY HILL MITSUBISHI, INC., ET AL. 
A-2899-13T2 
In a summary proceeding filed by the State seeking to remove encroachments from its right-of-way pursuant to N.J.S.A. 27:7-44.1, the named defendants filed a counterclaim against Department of Transportation officials for monetary damages resulting from the alleged violation of their constitutional right to equal protection of the laws, recovery for unjust enrichment, and injunctive relief. We find that the doctrine of qualified immunity bars recovery because there is no cognizable property interest in the activity in these circumstances, nor any basis in the record for injunctive relief. The New Jersey Contractual Immunity Act, N.J.S.A. 59:13-3, waived sovereign immunity only for express contracts or contracts implied in fact, not for a contract implied in law which might support defendants' claim for unjust enrichment. The counterclaim is dismissed in its entirety. 02/26/15 

GARDEN HOWE URBAN RENEWAL ASSOCIATES, L.L.C. VS. HACBM ARCHITECTS ENGINEERS PLANNERS, L.L.C. AND DEL-SANO CONTRACTING CORP. A-1144-13T2

GARDEN HOWE URBAN RENEWAL ASSOCIATES, L.L.C. VS. HACBM 
ARCHITECTS ENGINEERS PLANNERS, L.L.C. AND DEL-SANO 
CONTRACTING CORP. 
A-1144-13T2 
In this case, in which plaintiff is asserting claims of professional negligence against defendant architects, we hold that: (1) plaintiff's principal expert report should not have been barred because the report was written by two professional engineers and a code enforcement official rather than a licensed architect; (2) plaintiff established exceptional circumstances to extend the time for discovery pursuant to Rule 4:24-1(c) because its principal expert report was barred on the eve of trial; and (3) plaintiff's architectural expert should have been permitted to testify at trial concerning one of plaintiff's claims because, although the expert had not explicitly opined as to the standard of care applicable to this claim, that opinion was implicit in the expert's report. 02/26/15 

Deborah Townsend v. Noah Pierre (A-2-13; 072357)

Deborah Townsend v. Noah Pierre (A-2-13; 072357) 

Given the uncontradicted testimony that the driver’s view was unimpeded by the shrubbery on defendants’ property, the trial court properly barred the causation opinion of plaintiffs’ expert and granted summary judgment. The opinion on the issue of causation was a net opinion that was directly contradicted by the factual evidence. The opinion with regard to the duty of care owed by the property owner and lessee was properly substantiated and was therefore admissible under N.J.R.E. 702 and 703. 3-12-15 

In re Adoption of N.J.A.C. 5:96 and 5:97 by the N.J. Council on Affordable Housing (M-392-14; 067126)

In re Adoption of N.J.A.C. 5:96 and 5:97 by the N.J. Council on Affordable Housing (M-392-14; 067126) 

The FHA’s exhaustion-of-administrative-remedies requirement is dissolved until further order of the Court. The courts may resume their role as the forum of first resort for evaluating municipal compliance with Mount Laurel obligations, as provided in this opinion and the Court’s corresponding Order. The effective date of the Court’s Order is delayed by ninety days to effectuate an orderly transition to the judicial remedies authorized by the Court. 3-10-15